FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50038
Plaintiff-Appellee, D.C. No.
v. 2:08-cr-00395-
ALBERTO MACIEL-ALCALA, AKA CAS-1
Ramon Alfredo Ramirez, ORDER AND
Defendant-Appellant. AMENDED
OPINION
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
August 6, 2009—Pasadena, California
Filed March 25, 2010
Amended July 21, 2010
Before: William C. Canby, Jr., Kim McLane Wardlaw and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Wardlaw
10365
10368 UNITED STATES v. MACIEL-ALCALA
COUNSEL
Sean K. Kennedy and Alexandra W. Yates, Federal Public
Defenders, Los Angeles, California, for the defendant-
appellant, Alberto Maciel-Alcala.
Thomas P. O’Brien, Christine C. Ewell, and Yvonne L. Gar-
cia, United States Attorneys, Los Angeles, California, for the
plaintiff-appellee, United States of America.
ORDER
Appellant’s petition for panel rehearing is granted. The
prior opinion filed on March 25, 2010, and reported at 598
F.3d 1239, is vacated concurrent with the filing of an
Amended Opinion today.
With this amendment, the panel has unanimously voted to
reject appellant’s suggestion for rehearing en banc. Judges
Wardlaw and Callahan vote to reject the suggestion for
rehearing en banc, and Judge Canby so recommends.
The full court has been advised of the suggestion for
rehearing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
No petitions for panel rehearing or rehearing en banc may
be filed with respect to the Amended Opinion. See 9th Cir.
G.O. 5.3(a)
IT IS SO ORDERED.
OPINION
WARDLAW, Circuit Judge:
Alberto Maciel-Alcala (“Maciel”) appeals his conviction of
two counts of aggravated identity theft under 18 U.S.C.
UNITED STATES v. MACIEL-ALCALA 10369
§ 1028A for using a birth certificate belonging to “another
person” to procure a U.S. passport in the name of Ramon
Ramirez. Having illicitly obtained a U.S. passport, Maciel
used it to falsely claim U.S. citizenship upon his arrival from
Guadalajara, Mexico, at the Los Angeles International Air-
port. Maciel moved for judgment of acquittal, contending that
the government was required to prove that Maciel knew that
Ramon Ramirez was a living person when he obtained
Ramirez’s birth certificate and used it to obtain the passport.
The district court denied the motion, and Maciel appeals.
Because we agree with the district court that the scienter ele-
ment of 18 U.S.C. § 1028A requires that the government
prove only that Maciel knew that Ramirez was a real person,
living or deceased, when he procured the passport using
Ramirez’s birth certificate, we affirm.
I.
Maciel is a Mexican citizen who had been living in the
United States under the stolen identity of Ramon Ramirez, a
man with whom Maciel was not acquainted. Maciel used
Ramirez’s identity to purchase a truck, rent an apartment,
secure loans, and obtain several cellular telephone accounts.
He also used Ramirez’s identity to obtain a California identi-
fication card, birth certificate, and Social Security card, all of
which were issued in Ramirez’s name. In August 2004, Mac-
iel used these documents to procure a U.S. passport, which he
later used to travel to Mexico. On March 17, 2008, Maciel
was arrested by U.S. Customs and Border Protection
(“Customs”) officials for attempting to use the fraudulently
obtained passport to reenter the U.S. and for falsely claiming
U.S. citizenship on his Customs declaration.
The government indicted Maciel for making a false state-
ment in his passport, 18 U.S.C. § 1542, for falsely represent-
ing himself as a U.S. citizen to Customs, 18 U.S.C. § 911, and
for two counts of aggravated identity theft in connection with
the underlying counts in violation of 18 U.S.C.
10370 UNITED STATES v. MACIEL-ALCALA
§ 1028A(a)(1). Section 1028A(a)(1) provides an additional
two years of incarceration for anyone who “during and in
relation to any felony” enumerated in the statute, two of
which are Maciel’s underlying offenses, “knowingly transfers,
possesses, or uses, without lawful authority, a means of iden-
tification of another person.”
Maciel pled guilty to the § 911 and § 1542 charges and
waived his right to a jury trial on the aggravated identity theft
counts. During the bench trial, a supervisor from the Orange
County Clerk Recorder’s Office testified that on February 19,
2004, a person representing himself to be Ramon Alfredo
Ramirez applied for and was given a copy of his birth certifi-
cate. The real Ramirez, who was alive and well and residing
in Arizona, testified that he never requested a copy of his birth
certificate from Orange County, where he was born. Nor did
he authorize Maciel to request a copy of this birth certificate.
Maciel did not contest this evidence, but stipulated that (1) he
had applied for a passport in Ramirez’s name and presented
a copy of Ramirez’s birth certificate in support of his applica-
tion on August 11, 2004, and (2) he had presented the pass-
port to Customs officers when he reentered the U.S. on March
17, 2008.
Before closing argument, Maciel moved for judgment of
acquittal pursuant to Federal Rule of Criminal Procedure 29.
Drawing upon language from the Supreme Court’s decision in
Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009),
Maciel argued that, to secure the enhanced penalty under
§ 1028A, the government must prove that Maciel knowingly
possessed, transferred, or used a means of identification of
“another person” who he then knew to be a “live” person—as
opposed to a “deceased” person. The government conceded
that it could not prove that Maciel knew Ramirez was alive
when he used Ramirez’s birth certificate to obtain the pass-
port. Holding that § 1028A requires the government to prove
only that Maciel knew Ramirez was a real person, living or
deceased, the district court denied Maciel’s motion and
UNITED STATES v. MACIEL-ALCALA 10371
entered a guilty verdict on the two counts of aggravated iden-
tity theft.1
II.
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review de novo whether the district court correctly con-
cluded that the word “person” in § 1028A(a)(1) refers to both
living and deceased persons. See Rodriguez v. Smith, 541 F.3d
1180, 1183 (9th Cir. 2008) (“We review questions of statutory
interpretation de novo.”).
III.
In Flores-Figueroa, the Supreme Court addressed the ques-
tion of whether 18 U.S.C. § 1028A “requires the government
to show that the defendant knew that the ‘means of identifica-
tion’ he or she unlawfully transferred, possessed, or used, in
fact, belonged to ‘another person.’ ” 129 S. Ct. at 1888. There
the Court rejected the argument that the phrase “another per-
son” included fictional persons as well as actual persons. Id.
at 1888-94. Maciel springboards from Flores-Figueroa to the
conclusion that not only does the statute require the govern-
ment to prove that the defendant knew that the means of iden-
tification belonged to another real person, but also that the
defendant knew that the other person was a living—as
opposed to a deceased—actual person. The Flores-Figueroa
decision, however, does not bear the weight Maciel would
assign to it.2 We therefore must determine whether the word
1
The district court sentenced Maciel to one month on each of the under-
lying convictions, to be served concurrently, followed by twenty-four
months on each of the aggravated identity theft convictions to be served
concurrently with each other but consecutively to the terms imposed for
the underlying convictions.
2
Maciel directs us to an exchange between the government’s counsel,
Justice Stevens, and Justice Kennedy during the oral argument of Flores-
10372 UNITED STATES v. MACIEL-ALCALA
“person” as used in § 1028A includes the living and the dead
or whether Congress intended that the government must prove
the defendant used the identification of a person he knew at
the time was alive.
A.
[1] As with all questions of statutory interpretation, we
first turn to the plain language of § 1028A. See United States
v. Rosales, 516 F.3d 749, 758 (9th Cir. 2008) (“[S]tatutory
interpretation begins with the plain language of the statute.”
(internal quotation marks omitted)). “A fundamental canon of
statutory construction is that, unless otherwise defined, words
will be interpreted as taking their ordinary, contemporary,
common meaning.” Wilderness Soc’y v. U.S. Fish & Wildlife
Serv., 316 F.3d 913, 932 (9th Cir. 2003) (internal quotation
marks omitted). Because the aggravated identity theft statute
does not define the phrase “another person” or the word “per-
son,” see 18 U.S.C. § 1028(d) (defining certain other terms in
§ 1028A), we look to its ordinary meaning.
[2] Maciel argues that, as used in ordinary English, “an-
other person” means “a living human being,” while the gov-
ernment argues “another person” may mean someone either
living or deceased. Although we agree that “dictionary defini-
tions are cognizable” as tools for determining the ordinary
Figueroa. In that exchange, Justice Stevens suggested that at least he
understood the word “person” to mean “living person.” Transcript of Oral
Argument at 26-27, Flores-Figueroa, 129 S. Ct. 1886 (2009) (No. 08-
108), available at http://www.supremecourtus.gov/oral_arguments/
argument_transcripts/08-108.pdf. This discussion, however, which
involved a hypothetical question not before the Court, is of no precedential
value. See, e.g., United States v. Bd. of Educ. of Chicago, 799 F.2d 281,
285 n.3 (7th Cir. 1986) (noting that it is the judicial opinion which “stands
as the sole expression of the court; statements made at oral argument do
not determine the scope of an opinion unless explicitly incorporated into
the opinion”).
UNITED STATES v. MACIEL-ALCALA 10373
meaning of words used in a statute, United States v. Banks,
556 F.3d 967, 978 (9th Cir. 2009), here, such definitions
admit of more than one interpretation. Some dictionary defini-
tions, such as those cited by Maciel, specify that “person”
means only “living person,” while others, such as those cited
by the government, encompass both living and deceased per-
sons. For example, the American Heritage Dictionary’s pri-
mary definition of person is “a living human being.”
American Heritage Dictionary 1310 (4th ed. 2000); see also
11 Oxford English Dictionary 597 (2d ed. 1989) (defining
“person” as “[t]he living body of a human being”). In con-
trast, Webster’s Third New International Dictionary defines
“person” as both “a living individual unit” and as a “human
being.” Webster’s Third New International Dictionary 1686
(2002); see also Merriam-Webster’s Collegiate Dictionary
865 (10th ed. 2001) (defining “person” as “human, individu-
al”). As reflected in those texts, depending on the context, the
noun “person” properly may be narrowed by the adjectives
“living” and “deceased.”
Nor do legal definitions of the word “person” resolve the
textual ambiguity. Black’s Law Dictionary sets forth as its
primary definition: “person—A human being”; the entry also
includes the phrase “person not deceased,” which is defined
as “[a] person who is either living or not yet born.” Black’s
Law Dictionary 1178 (8th ed. 2004).
The statutory usage of the word “person” is similarly unil-
luminating. It is a “well-established rule of construction that
where Congress uses terms that have accumulated settled
meaning under common law, a court must infer, unless the
statute otherwise dictates, that Congress means to incorporate
the established meaning of these terms.” Perfect 10, Inc. v.
CCBill LLC, 488 F.3d 1102, 1117 (9th Cir. 2007) (internal
quotation marks omitted). State statutes define the word “per-
son” variously to include persons who are alive or deceased.3
3
Compare Alaska Stat. § 45.50.010 (“A mark may not be registered if
it consists of or comprises . . . matter that may disparage or falsely suggest
10374 UNITED STATES v. MACIEL-ALCALA
Nor are federal statutes helpful in defining the word “person.”
Some statutes’ use of the word “person” implies that, standing
alone, “person” means “living person.” The “cyberpiracy”
statute, 15 U.S.C. § 8131, imposes civil liability upon “[a]ny
person who registers a domain name that consists of the name
of another living person . . . without that person’s consent.”
Id. § 8131(1)(A). Because “that person” refers to “another liv-
ing person,” and because deceased persons cannot register
domain names, in the cyberpiracy statute Congress must have
intended that the word “person” mean “living person.” See
also 18 U.S.C. § 876(d) (imposing criminal and civil liability
upon extortionists who send to “any other person” prohibited
communications that contain “any threat to injure the property
or reputation of the addressee or of another, or the reputation
of a deceased person”). Other federal statutes imply that “per-
son” may encompass both living and deceased persons. In
particular, some federal statutes use the phrase “persons, liv-
ing or dead.” See 15 U.S.C. § 1052(a) (“No trademark . . .
shall be refused registration . . . [c]onsists of or comprises . . .
matter which may disparage or falsely suggest a connection
with persons, living or dead . . . .”); 31 U.S.C. § 5112(l)(4)(E)
(“No head and shoulders portrait or bust of any person, living
a connection with persons, living or dead . . . .”), Ariz. Rev. Stat. Ann.
§ 14-2603 (defining “devisee” to include “[a] person . . . who was
deceased at the time the testator executed the will as well as a person . . .
who was then living but who failed to survive the testator”), Cal. Penal
Code § 530.55(a) (defining “person” as including “a natural person, living
or deceased” in setting forth the definitions for “Crimes Against Proper-
ty”), Or. Rev. Stat. § 165.800 (“’Another person’ means a real person,
whether living or deceased . . . .”), and Wash. Rev. Code § 63.60.020
(“’Individual’ means a natural person, living or dead.”), with Haw. Rev.
Stat. § 707-700 (defining “person” as “a human being who has been born
and is alive” in setting forth the definitions for “Offenses Against the Per-
son”), and Idaho Code Ann. § 54-206 (“’Person’ means any natural living
person.”). Cf. Nev. Rev. Stat. § 0.039 (“Except as otherwise expressly pro-
vided in a particular statute or required by the context, ‘person’ means a
natural person . . . .”).
UNITED STATES v. MACIEL-ALCALA 10375
or dead, and no portrait of a living person may be included in
the design of any quarter dollar under this subsection.”).
Maciel further contends that, under Guyton v. Phillips, 606
F.2d 248 (9th Cir. 1979), the “settled legal meaning” of the
word “person” is “living person” and that Congress must have
intended to incorporate Guyton’s definition into § 1028A
under principles of statutory interpretation. See Neder v.
United States, 527 U.S. 1, 21 (1999) (courts must infer that
Congress intended to incorporate settled meaning of terms it
uses). In Guyton, we held that the Civil Rights Act, 42 U.S.C.
§§ 1983 and 1985, does not provide a cause of action on
behalf of a deceased person based on alleged violations of the
deceased person’s civil rights which occurred after his death.
Noting in passing that, “[g]enerally, the term ‘person’, as used
in a legal context, defines a living human being and excludes
a corpse or a human being who has died,” Guyton, 606 F.2d
at 250, we held that the definition of “person” for purposes of
protection of civil or constitutional rights is limited only to a
living human being, id. at 250-51.
Guyton is inapposite for three reasons. First, our observa-
tion in Guyton that the word “person” generally defines a liv-
ing person and excludes the deceased did not hold that the
word “person” has “accumulated [a] settled meaning under
the common law,” Neder, 527 U.S. at 21, such that Congress
must have intended to incorporate it into § 1028A. To the
contrary: our use of the word “generally” implies exceptions
to the interpretation that “person” means “living person.” Sec-
ond, in Guyton, our holding extended only to sections 1983
and 1985 of the Civil Rights Act. Whereas one cannot violate
a deceased person’s civil or constitutional rights, see Guyton,
606 F.2d at 250, it is readily apparent from the facts of this
very case that one can steal a deceased person’s identity.
Third, we also observed in Guyton that nothing in the legisla-
tive history of the Civil Rights Act indicated that Congress
intended to include deceased persons in the definition of “per-
son.” Here, by contrast, there is evidence in the legislative
10376 UNITED STATES v. MACIEL-ALCALA
history that Congress intended that “person” embrace a
broader meaning.
[3] In the absence of any controlling authority and because
in both ordinary English and legal usage the word “person”
can be used to refer to the living, the deceased, or both, we
conclude that § 1028A(a)(1)’s use of the word “person” is
ambiguous. We therefore look to other cannons of statutory
interpretation to ascertain congressional intent.
B.
Because Congress did not expressly indicate whether it
intended the word person to mean only living persons in the
text, we must turn to the structure of the statute. We do not
examine the statutory provision in isolation, Bodine v. Graco,
Inc., 533 F.3d 1145, 1151 (9th Cir. 2008), but rather, read the
words in a statute “in their context and with a view to their
place in the overall statutory scheme,” FDA v. Brown & Wil-
liamson Tobacco Corp., 529 U.S. 120, 133 (2000); see also
Holloway v. United States, 526 U.S. 1, 7 (1999) (“[T]he
meaning of statutory language, plain or not, depends on con-
text.” (internal quotation marks omitted)). An analysis of the
overall scheme of the aggravated identity theft statute reveals
that Congress intended that the word “person” include living
and deceased persons.
[4] Both subsections (a)(1) and (a)(2) use the phrase “an-
other person.” We interpret identical phrases used in the same
statute to bear the same meaning. Gustafson v. Alloyd Co.,
513 U.S. 561, 570 (1995) (It is a “normal rule of statutory
construction that identical words used in different parts of the
same act are intended to have the same meaning.” (internal
quotation marks omitted)). In addition, the “close proximity”
of two statutory provisions “presents a classic case for appli-
cation of the normal rule of statutory construction that identi-
cal words used in different parts of the same act are intended
to have the same meaning.” Comm’r v. Lundy, 516 U.S. 235,
UNITED STATES v. MACIEL-ALCALA 10377
250 (1996) (internal quotation marks omitted). Therefore, the
meaning of the phrase “another person” in subsection (a)(2)
informs our interpretation of the phrase “another person” in
subsection (a)(1).
[5] Subsection (a)(2) imposes a mandatory five-year sen-
tence enhancement on anyone who “knowingly transfers, pos-
sesses, or uses, without lawful authority, a means of
identification of another person or a false identification docu-
ment” during and in relation to certain enumerated terrorism-
related felonies. 18 U.S.C. § 1028A(a)(2). “Means of identifi-
cation” is defined to include any name or number (for exam-
ple, social security numbers, dates of birth, passport numbers,
and tax identification numbers) that may be used to identify
a specific individual. Id. § 1028(d)(7) (setting forth the defini-
tion of “means of identification” for both sections 1028 and
1028A). If we interpret “person” under subsection (a)(2) to
include only the living, a defendant could be found guilty
under subsection (a)(2) for possessing a “false identification
document” (such as a social security card) belonging to a
deceased person, but not for using an identification number
(such as a social security number) belonging to the same
deceased person. We cannot conclude that Congress intended
such an absurd result.
Maciel contends that such a result is in fact not absurd,
arguing that Congress may well have determined that use of
a false identification document poses a greater harm than use
of a false identification number without supporting documen-
tation. The statute itself defeats this argument, however, by
providing identical penalties for the use of an identity number
and the use of a false identity document where the predicate
crime is terrorism. Id. § 1028A(a)(2). Had Congress deter-
mined that the use of a false identification document poses a
greater threat of harm than the use of a false identification
number without supporting documentation, we would expect
that judgment to be reflected in differing penalties for the two
crimes.
10378 UNITED STATES v. MACIEL-ALCALA
Similarly unavailing is Maciel’s contention that “person”
must refer only to living persons given that § 1028A(b) states
that “a court shall not place on probation any person con-
victed of a violation of this section.” Id. § 1028A(b)(1); see
also id. § 1028A(b)(2) (discussing “term of imprisonment
imposed on a person”); id. § 1028A(b)(4) (same). These sec-
tions, however, discuss the penalties to be imposed on a per-
son who has been convicted of the crime. Maciel’s suggestion
that “person” here means “living person” because only living
persons can be convicted proves too much. It is precisely
because deceased persons cannot be convicted and thus sub-
ject to the statute’s penalty provisions that it was unnecessary
for Congress to limit the sentencing provisions of § 1028A to
“living persons.” See United States v. Jimenez, 507 F.3d 13,
19 n.6 (1st Cir. 2007) (noting that because the deceased can-
not be sentenced, the word “person” in § 1028A(a)(1) is “free
to take on the larger meaning”). By contrast, because the
means of identification of deceased persons can be stolen and
used unlawfully, had Congress used the phrase “living or
deceased” in § 1028A(a)(1), it would have been surplusage.
The only other circuits to have addressed this question
agree that the phrase “another person” refers both to living
and deceased persons. In United States v. Jiminez, the First
Circuit held that, because reading “another person” in
§ 1028A(a)(2) as encompassing only living persons would
lead to absurd results, Congress could not have intended to so
limit the definition in § 1028A(a)(1). 507 F.3d at 18-22. Simi-
larly, in United States v. Kowal, 527 F.3d 741 (8th Cir. 2008),
the Eighth Circuit held that it would be illogical to limit the
phrase “another person” to living persons in subsection (a)(2)
because Congress intended to “achieve broad coverage” in
that subsection. Id. at 746-47. Noting that Congress used iden-
tical language in subsection (a)(1), the Kowal court concluded
that Congress unambiguously intended that “another person”
encompass both the living and the deceased. Id. at 747.
[6] Because the only logical reading of “person” in subsec-
tion (a)(2) encompasses both living and deceased persons, and
UNITED STATES v. MACIEL-ALCALA 10379
because Congress used the same word in the neighboring sub-
section (a)(1), Congress must have intended that “person” in
(a)(1) refers to both living and deceased persons.
C.
The congressional purpose behind and legislative history of
the aggravated identity statute only buttress our conclusion
that Congress intended that the phrase “another person”
include living and deceased persons. Section 1028A was
enacted as part of the Identity Theft Penalty Enhancement
Act, Pub. L. No. 108-275, 118 Stat. 831 (2004) (the “Act”).
At a legislative hearing on the Act, Representative Adam
Schiff, one of the bill’s co-sponsors, stated:
In section A where the offenses are defined, it refers
to a means of identification of another person. I take
it by the choice of that language that these enhance-
ments apply when the fraudulent identification is
that of another existing person, either live or
deceased, but an actual individual, so in the case of
a garden-variety immigration case where somebody
fabricates an identity card out of whole cloth, not
referring to any other person but merely invents a
persona, that that would not be included within the
sweep of this.
Identity Theft Penalty Enhancement Act, and the Identity
Theft Investigation and Prosecution Act of 2003: Hearing on
H.R. 1731 and H.R. 3693 Before the Subcomm. on Crime,
Terrorism, and Homeland Sec. of the H. Comm. on the Judi-
ciary, 108th Cong., 2d Sess. 32 (2004) (statement of Rep.
Schiff, Member, House Comm. on the Judiciary). “Although
the statements of one legislator made during debate may not
be controlling,” North Haven Bd. of Ed. v. Bell, 456 U.S. 512,
526 (1982), Representative Schiff’s remarks, as those of the
Bill’s cosponsor, are “clearly probative of a legislative judg-
ment” and are therefore “entitled to weight,” Simpson v.
10380 UNITED STATES v. MACIEL-ALCALA
United States, 435 U.S. 6, 13 (1978); see also Bell, 456 U.S.
at 526-27 (noting that the “remarks . . . of the sponsor of the
language ultimately enacted . . . are an authoritative guide to
the statute’s construction”).
In addition, the purpose of the Act is to “address[ ] the
growing problem of identity theft.” H.R. Rep. No. 108-528,
at 3 (2004), reprinted in 2004 U.S.C.C.A.N. 779, 780. In
enacting the statute, Congress sought to protect businesses
from financial loss and the nation from terrorist threats. See
id. at 780-81. Section 1028A is intended to make it “easier for
prosecutors” to prosecute defendants and to stiffen penalties
to deter identity theft. Id. at 786.
[7] Reading the phrase “another person” to encompass
both living and deceased persons is consistent with Congress’
goal of deterring defendants from engaging in identity theft
and magnifying that crime by using the stolen identification
for further unlawful purposes. To an offender, an identity
stolen from an actual person—living or dead—is more desir-
able than a fabricated identity, for two reasons. First, real
identities provide offenders with better cover because they are
based upon verifiable information (e.g., real social security
numbers, dates of birth, and names). Second, stolen identities
have a broader range of uses than fictitious ones—for exam-
ple, one can use a real person’s birth certificate to obtain an
authentic passport issued by the United States Government
and to freely enter and depart the U.S., whereas a doctored
passport would be detected by electronic scanners. As a
result, to the offender, it matters little whether the person
whose identity was stolen is living or deceased, so long as the
person is an actual person. Cf. Flores-Figueroa, 129 S. Ct. at
1892 (declining to conclude that “Congress intended to
achieve [the statute’s] enhanced protection by permitting con-
viction of those who do not know the ID they unlawfully use
refers to a real person, i.e., those who do not intend to cause
this further harm.”). In fact, it is not unlikely for Congress to
have been more concerned with deterring theft of deceased
UNITED STATES v. MACIEL-ALCALA 10381
persons’, as opposed to living persons’, identities because the
former is often less likely to be discovered. As the First Cir-
cuit noted in Jiminez, “A false identity created from the
means of identification of the deceased may even be superior
to one stolen from the living. The dead, after all, will not
create conflicting paper trails or notice strange activity on
their credit reports.” 507 F.3d at 20 n.8 (emphasis in original);
see also Kowal, 527 F.3d at 747 (“An identity stolen from a
deceased person . . . is far less likely to be uncovered than one
stolen from a living person.”).
[8] We also recognize that, as a practical matter, the pur-
pose of the statute would be frustrated if we read “person” to
mean only “living persons.” Doing so would make prosecu-
tion of these aggravated felonies almost impossible. A defen-
dant in such a prosecution may simply claim he did not know
the person whose identity he stole was alive. Absent some
objective evidence that the defendant knew the victim person-
ally, the government would be unable to prosecute this sort of
theft. Indeed, this is the precise obstacle that would confront
the government in this case were we to accept Maciel’s argu-
ment. These practical considerations are markedly different
from those involved in Flores-Figueroa. There, the Court
noted that there often would be circumstantial evidence that
the defendant knew that the victim was real. 129 S. Ct. at
1893. “[T]he examples of identity theft in the legislative his-
tory (dumpster diving, computer hacking, and the like)” were,
as the Court observed, “all examples of the types of classic
identity theft where intent should be relatively easy to prove,
and there will be no practical enforcement problem” because
one cannot hack a fictitious person’s computer or rummage
through a fictitious person’s trash. Id. Here, however, proving
the defendant subjectively knew that his victim was a living
person would be a virtually impossible undertaking. Simi-
larly, although Maciel obtained the birth certificate from the
Orange County registrar, he had no idea that Ramirez was liv-
ing in Arizona, and it made no difference in his use of
Ramirez’s birth certificate whether Ramirez was dead or
10382 UNITED STATES v. MACIEL-ALCALA
alive. Birth certificates are evidence only of a live birth—they
provide no evidence as to death.
Maciel argues that Congress’ primary intent was to protect
the victims of identity theft, and because deceased persons
cannot be victimized, Congress did not intend a broad reading
of the word “person.” The legislative history does indicate
that one of Congress’ concerns was the financial cost to con-
sumers and the damage to victims’ credit histories. See H.R.
Rep. No. 108-528, at 4-5. Simply because the birth certificate
belongs to a dead person, however, does not mean stealing it
is a victimless crime. Maciel fails to appreciate the
significance—legal and personal—of one’s identity even after
one dies; theft of these identities is not a victimless crime. The
decedent’s estate remains vulnerable to claims before it is
closed. Identity theft can therefore endanger the decedent’s
legacy and bequests. Moreover, the identities of friends and
family of the deceased may be more easily accessed by poten-
tial thieves. See, e.g., Lee v. Superior Court, 989 P.2d 1277,
1279-80 (Cal. 2000) (finding that the legislature likely
intended a false impersonation statute to apply to imperson-
ation of a deceased person, “to protect a deceased person’s
interests during the period between death and the settling of
his or her estate”). Congress’ clear intent was to deter and
punish identity theft, not merely to shift the adverse effects of
the crime from the living to the dead and their heirs. Further,
by cherry-picking from the legislative history, Maciel ignores
Congress’ broader concern over national security: protecting
the nation from terrorists who use stolen identities to hide
from law enforcement. See, e.g., H.R. Rep. No. 108-528, at 4
(“As international cooperation increases to combat terrorism,
al-Qaida and other terrorist organizations increasingly turn to
stolen identities to hide themselves from law enforcement.”).
Indeed, this concern is ever present where, as here, one boards
an airplane bound for the U.S. using an authentic U.S. pass-
port obtained through unlawful means. A narrow reading of
the word “person” is inconsistent with Congress’ concern
UNITED STATES v. MACIEL-ALCALA 10383
over terrorist threats. We decline Maciel’s invitation to under-
cut Congress’ intent by giving “person” a restricted reading.
IV.
[9] Maciel urges that we apply the rule of lenity in light of
Congress’ use of the word “person.” The rule of lenity “is
rooted in fundamental principles of due process which man-
date that no individual be forced to speculate, at peril of
indictment, whether his conduct is prohibited.” United States
v. Nader, 542 F.3d 713, 721 (9th Cir. 2008) (internal quota-
tion marks omitted). The rule of lenity “applies only when
there is a grievous ambiguity or uncertainty in the statute and
when, after seizing everything from which aid can be derived,
we can make no more than a guess as to what Congress
intended.” United States v. Iverson, 162 F.3d 1015, 1025 (9th
Cir. 1998) (internal quotation marks omitted); see also Nader,
542 F.3d at 721 (“The rule of lenity applies only where after
seizing every thing from which aid can be derived, the Court
is left with an ambiguous statute. The language of the statute
must be grievously ambiguous.” (citation and internal quota-
tion marks omitted)).
[10] Section 1028A(a)(1) is not ambiguous. That “person”
is used variously to refer both to living and deceased persons
demonstrates that Congress may have intended that the phrase
“another person” encompass both; and when read in its proper
context and with a view to its place in the overall statutory
scheme, it is clear that Congress did intend that it encompass
both. The legislative history of § 1028A and practical consid-
erations confirm this reading. Maciel’s conduct unambigu-
ously falls within the provisions of § 1028A(a)(1), rendering
application of the rule of lenity unwarranted.
CONCLUSION
[11] Because we conclude that the government was not
required to prove that Maciel knew that Ramirez was a living
10384 UNITED STATES v. MACIEL-ALCALA
person when he committed the crime of aggravated identity
theft, the judgment of conviction for violating § 1028A(a)(1)
is AFFIRMED.