FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10126
Plaintiff-Appellant, D.C. No.
v. 1:06-cr-00080-1
HAENG HWA LEE, ORDER AND
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the District of Guam
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
February 11, 2010—Honolulu, Hawaii
Filed April 28, 2010
Before: Jerome Farris, Dorothy W. Nelson and
Carlos T. Bea, Circuit Judges.
Opinion by Judge D.W. Nelson
6299
6300 UNITED STATES v. LEE
COUNSEL
Karon Virginia Johnson, OFFICE OF THE U.S. ATTOR-
NEY, Hagatna, Guam, for the appellant.
Howard Gustaf Trapp, HOWARD TRAPP INC., Hagatna,
Guam, for the appellee.
ORDER
The request to publish the unpublished Memorandum dis-
position is GRANTED. The Memorandum disposition filed
UNITED STATES v. LEE 6301
February 22, 2010, is redesignated as an authored Opinion by
Judge D. Nelson.
OPINION
D.W. NELSON, Senior Circuit Judge:
Appellee Haeng Hwa Lee (“Lee”), a Korean national who
originally entered Guam under a tourist visa waiver program,
was indicted for Fraud in Connection with an Identification
Document, in violation of 18 U.S.C. §§ 2 and 1028(a)(1), and
Conspiracy, in violation of 18 U.S.C. §§ 2 and 371, after
obtaining a Guam driver’s license using a fictitious Individual
Taxpayer Identification Number (“ITIN”). At Lee’s pretrial
conference, the district court dismissed the indictment against
Lee, holding that a government agent only produces an identi-
fication document “without lawful authority” under
§ 1028(a)(1) if that agent was “paid off, so that [the agent
does] not requir[e] the normal documents or know[s] that the
normal documents are forged and . . . issue[s] a driver’s
license anyway.” The government timely appealed. We have
jurisdiction under 28 U.S.C. § 1291, and we reverse.
“We review de novo a district court’s decision to dismiss
an indictment based on an interpretation of a federal statute.”
United States v. Marks, 379 F.3d 1114, 1116 (9th Cir. 2004).
[1] 18 U.S.C. § 2(b) provides that a person who “willfully
causes an act to be done which if directly performed by him
or another would be an offense against the United States, is
punishable as a principal.” In other words, a principal is guilty
of an offense if she used “an innocent pawn to cause an act
to be done which, if performed by the principal, would be
unlawful.” United States v. Valencia, 492 F.2d 1071, 1074
(9th Cir. 1974). The district court, without citing precedent,
concluded that § 2(b) does not apply to prosecutions for iden-
tification fraud under § 1028(a)(1).
6302 UNITED STATES v. LEE
[2] This conclusion was in error. As Lee concedes, it is
irrelevant whether the government agent who actually pro-
duced Lee’s license intended to commit identification fraud or
was merely an innocent pawn. See United States v. Rashwan,
328 F.3d 160, 165 (4th Cir. 2003) (“[The defendant] aided
and abetted the production of false identification documents
by providing false information to the DMV with the specific
intent that the agency would then produce a false identifica-
tion document for him. Because [the defendant] specifically
intended for the DMV to issue a fraudulent identification card
and license, it does not matter whether the clerk who actually
produced the license also had any intent to commit the
crime.”).
[3] Lee argues that this court should affirm the district
court on the alternate ground that the Guam Department of
Revenue and Taxation does not have the lawful authority to
require that driver’s license applicants present an ITIN or
Social Security Number. This argument fails. Lee is precluded
from challenging the legality of the underlying requirement
that she present an ITIN in order to receive a driver’s license.
See, e.g., Dennis v. United States, 384 U.S. 855, 866 (1966)
(“It is no defense to a charge based upon [fraud] that the statu-
tory scheme sought to be evaded is somehow defective.”). We
therefore reverse the district court’s dismissal of the indict-
ment against Lee and remand for further proceedings.
REVERSED and REMANDED.