Government concedes split, recommends grant in ‘identity theft’ case

In July, Kevin discussed his filing of a petition in Flores-Figueroa v. United States (08-108), a case involving the knowledge requirement in the federal statute covering ‘aggravated identity theft.’  Last week, in its brief in response, the government conceded a “clear and entrenched” conflict existed over the proper interpretation of the law.  The Justice Department recommended that the Court grant cert to resolve the conflict, albeit in another case that presents the same issue, Mendoza-Gonzalez v. United States (08-5316) (petition, brief in response).

Both cases involve undocumented aliens charged with violating the ‘aggravated identity theft’ provision of 18 USC 1028A(a)(1), after they provided their employers with Social Security numbers that happened to belong to other individuals. The law sets a mandatory two-year sentence for anyone who, in connection with other specified crimes, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The source of the conflict is the word “knowingly” – namely, whether the government must prove defendants were aware the Social Security number they used belonged to another person. Three circuits have said prosecutors must make such a showing, while another three circuits – including the Eighth Circuit in both Flores-Figueroa and Mendoza-Gonzalez – have ruled otherwise. The issue, unsurprisingly, arises frequently with undocumented aliens who, to secure employment, purchase or simply make up Social Security numbers that may or may not have already been assigned.

Both petitions are scheduled to be distributed on October 1 for consideration at the October 17 conference. In advance of distribution, Kevin expects to file a reply brief in Flores-Figueroa.