Conference Call: Justices Asked to Take Up Fake ID Cases

The following column, featuring a selected petition up for consideration at the Justices’ private conference on October 17, appears in today’s edition of Legal Times (available to subscribers here). To access the certiorari-stage filings, or see other cases on the list of petitions to watch at Friday’s conference, click here.

Both Igancio Flores and Nicasio Mendoza entered the country illegally from Mexico. With the help of fake IDs, both took blue-collar jobs in the Midwest. But by virtue of using Social Security numbers that belonged to other people, both were convicted on federal charges of “aggravated identity theft” — a crime carrying a minimum of two years in prison.

At the Supreme Court’s private conference on Oct. 17, the justices will consider whether to grant review on the sole question presented in both men’s appeals: whether the statute applies not only to those who set out to steal others’ identities, but also to those who buy fake documents containing names or numbers that happen to belong to actual individuals.

As might be expected, the issue often arises with illegal immigrants, who typically buy phony ID cards to present to employers. Depending on the vendor, some are given IDs with made-up names and numbers, while others obtain cards bearing information that belong to actual individuals.

Following immigration raids last May at a kosher meat plant in Iowa, authorities indicted hundreds of workers on identity theft charges for using Social Security numbers that were already assigned. Fearing a mandatory two-year sentence, and seeking nothing more than deportation, most pleaded guilty to lesser charges and received fewer than six months in jail.

In the last two years alone, six federal appellate courts have determined the scope of the statute. Three have adopted the government’s more strict interpretation — including the U.S. Court of Appeals for the 8th Circuit in both Flores’ and Mendoza’s cases — while three have ruled for defendants.

Now, despite prevailing in the lower courts, the federal government has asked the Supreme Court to resolve the question, making it highly probable the Court will grant certiorari in one or both cases. A decision will likely be announced Oct. 20. (The petitions are No. 08-108, Flores-Figueroa v. United States, and No. 08-5316, Mendoza v. United States.)

The statute in question — 18 U.S.C. 1028A(a)(1) — imposes a mandatory two-year prison term on any person who, during the commission of other specified crimes, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”

The issue confounding federal courts is determining the elements of the statute to which the word “knowingly” applies. The 8th Circuit — agreeing with the 4th and 11th Circuits — concluded that, as an adverb, the term applies only to the verbs it immediately precedes (“transfers, possesses, or uses”), and not the sentence’s final phrase (“of another person”).

But Flores’ petition for certiorari contends — as the 1st, 9th, and D.C. circuits have found — that the statute is ambiguous at best. According to the petition — filed by Kevin Russell of D.C.’s Howe & Russell — other factors clearly resolve the ambiguity in the defendants’ favor. (Disclosure: Tom Goldstein’s wife, Amy Howe, is a name partner at Howe & Russell.)

For one thing, Russell argues, the title of the statute (“aggravated identity theft”) suggests Congress was only concerned with those who actively steal others’ identities. Just as one cannot “steal” a cat they mistakenly believe is a stray, Russell contends, one cannot commit identity “theft” by merely buying a fake ID card that happens to display a real name.

For another, Russell says, the law would make no sense unless the knowledge requirement also applied to the phrase “means of identification.” Otherwise, he argues, the government could prosecute a person who delivered an envelope he believed to contain a birthday card that, in reality, contained a stolen Social Security number. And so long as the term “knowingly” applies to “means of identification,” Russell maintains, there is no reason to conclude Congress did not intend it to also apply to “of another person.”

Russell also relies on the Supreme Court’s 1985 decision in Liparota v. United States, which involved a federal law that imposed criminal penalties on any individual who “knowingly uses, transfers, acquires, alters, or possesses [food stamps] in any manner not authorized by law.” Finding the phrase grammatically ambiguous, the Court found the law did not apply to individuals who used or obtained food stamps in a way they did not realize was illegal.

And if nothing else, Russell maintains, the 8th Circuit should have applied the “rule of lenity” — the legal principle of resolving ambiguous statutes in favor of defendants.

Meanwhile, the federal government — though agreeing with the 8th Circuit — acknowledges in its briefs that the question has created a “clear conflict,” and, due to the frequency with which it arises, recommends the Court grant certiorari to resolve the split.

Newly confirmed Solicitor General Gregory Garre suggests the Court accept Mendoza’s petition — filed by the Iowa Federal Public Defender’s office — and hold Flores’ petition pending the outcome of the case.

On the merits of the case, Garre, in addition to raising the grammatical arguments cited in the opinion, contends that the defendants’ construction would let individuals escape prosecution so long as they could plausibly claim ignorance as to whether the person on their ID card actually existed.

Garre also maintains that the defendants’ awareness not only makes no difference to the actual victims of identity theft, but “requiring the government to establish that knowledge would place on the prosecution an often impossible burden.” –Ben Winograd