United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 2, 2007 Decided February 15, 2008
No. 07-3055
UNITED STATES OF AMERICA,
APPELLANT
v.
GUSTAVO VILLANUEVA-SOTELO,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 06cr00271-01)
Ellen Chubin Epstein, Assistant U.S. Attorney, argued
the cause for appellant. With her on the briefs were Jeffrey A.
Taylor, U.S. Attorney, Roy W. McLeese, III, Elizabeth
Trosman, and Frederick W. Yette, Assistant U.S. Attorneys.
Steven R. Kiersh, appointed by the court, argued the
cause and filed the brief for appellee.
Before: HENDERSON and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
2
Dissenting opinion filed by Circuit Judge HENDERSON.
TATEL, Circuit Judge: The federal “[a]ggravated identity
theft” statute imposes two additional years of imprisonment
on any person who during the commission of an enumerated
felony “knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person.”
18 U.S.C. § 1028A(a)(1). The question before us is this: to
obtain a conviction under section 1028A(a)(1), must the
government prove the defendant knew the “means of
identification” he “transfer[red], possesse[d], or use[d]”
actually belonged to “another person,” or is it sufficient for
the government to show that the means of identification
happened to belong to another person? Based on the statute’s
text, purpose, and legislative history—and mindful that the
rule of lenity comes into play when, after resort to the
traditional tools of statutory interpretation, reasonable doubt
remains as to the statute’s meaning—we hold that section
1028A(a)(1)’s mens rea requirement extends to the phrase “of
another person,” meaning that the government must prove the
defendant actually knew the identification in question
belonged to someone else.
I.
Defendant Gustavo Villanueva-Sotelo, a Mexican
national, has entered the United States illegally three times
and has been deported twice. In August 2006, District of
Columbia Metropolitan Police approached Villanueva-Sotelo
and asked him for identification. Villanueva-Sotelo presented
the officers with what appeared to be a permanent resident
card—an official document issued by the Department of
Homeland Security proving its holder is authorized to stay or
work in the United States. Villanueva-Sotelo’s card displayed
his own name and photograph, listed Mexico as his country of
origin, and included an alien registration number. Villanueva-
3
Sotelo admits he knew the card was a fake. Although the
government can prove that the alien registration number
displayed on the card belonged to another individual, it
concedes—critically for this case—that it lacks any evidence
that Villanueva-Sotelo actually knew this.
The government charged Villanueva-Sotelo with
unlawful entry of a removed alien in violation of 8 U.S.C. §
1326(a) and (b)(1) (count one), possession of a fraudulent
document prescribed for authorized stay or employment in the
United States in violation of 18 U.S.C. § 1546(a) (count two),
and aggravated identity theft in violation of 18 U.S.C. §
1028A(a)(1) (count three). In full, the identity theft statute
reads: “Whoever, during and in relation to any felony
violation enumerated in subsection (c), knowingly transfers,
possesses, or uses, without lawful authority, a means of
identification of another person shall, in addition to the
punishment provided for such felony, be sentenced to a term
of imprisonment of 2 years.” Id. (emphasis added).
Villanueva-Sotelo pled guilty to the first two counts but
moved to dismiss count three, the aggravated identity theft
charge, arguing that section 1028A(a)(1) requires the
government to prove he actually knew the alien registration
number belonged to another person. Agreeing with the
defendant, Judge Friedman held that the word “knowingly” in
section 1028A(a)(1) must “modify both the verbs and the
object, that is, ‘means of identification of another person.’”
Hr’g Tr. at 50 (Apr. 4, 2007). In reaching this conclusion, the
Judge found the following exchange with the prosecutor
particularly illuminating:
[PROSECUTOR]: [I]t is stealing in the sense
that if I make up a number and it belongs to
someone else, I have taken that person’s
4
number that was rightfully assigned by a U.S.
agency.
THE COURT: If you make up the number?
[PROSECUTOR]: Yes. If I—
THE COURT: What if you make up a number
that doesn’t belong to anybody?
[PROSECUTOR]: Then you don’t charge the
offense, there is no offense because it’s not a
means of identification of another person.
THE COURT: So if the defendant picked a
number out of the air and it was [your]
number, he’s guilty, but if he picked a number
out of the air and [Immigration and Customs
Enforcement] hasn’t assigned it to anybody,
he’s not guilty?
[PROSECUTOR]: That’s correct.
Id. at 15. Unable to conclude that a scenario like this amounts
to identity theft, see id. at 48, Judge Friedman granted
Villanueva-Sotelo’s motion to dismiss count three.
The government now appeals. Because this case presents
a pure question of statutory interpretation, we review the
district court’s decision de novo. See Butler v. West, 164 F.3d
634, 639 (D.C. Cir. 1999).
II.
Our interpretive task begins with the statute’s language.
See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002).
5
We must first “determine whether the language at issue has a
plain and unambiguous meaning with regard to the particular
dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337,
340 (1997). If it does, our inquiry ends and we apply the
statute’s plain language. See Sigmon Coal, 534 U.S. at 450.
But if we find the statutory language ambiguous, we look
beyond the text for other indicia of congressional intent. See
Staples v. United States, 511 U.S. 600, 605 (1994)
(“[D]etermining the mental state required for commission of a
federal crime requires ‘construction of the statute and . . .
inference of the intent of Congress.’” (omission in original)
(quoting United States v. Balint, 258 U.S. 250, 253 (1922))).
Reduced to its essence, section 1028A(a)(1) reads as
follows: “Whoever . . . knowingly . . . uses, without lawful
authority, a means of identification of another person shall . . .
be sentenced to a term of imprisonment of 2 years.”
According to the government, this text is unambiguous: the
statute’s knowledge requirement extends only so far as
“means of identification,” requiring no proof the defendant
knew the identification belonged to “another person.” For his
part, Villanueva-Sotelo contends the statute is ambiguous and
that the provision’s title, purpose, and legislative history
reveal Congress’s intent to extend the mens rea requirement
throughout the entire sentence, namely all the way to “of
another person.” We agree with the defendant. Although the
government’s interpretation is plausible, nothing suggests it
represents the only possible—or even the most plausible—
reading of section 1028A(a)(1). See McCreary v. Offner, 172
F.3d 76, 82 (D.C. Cir. 1999) (finding a statute ambiguous
because it was “reasonably susceptible to more than one
meaning”); see also Air Transp. Ass’n of Am. v. FAA, 169
F.3d 1, 4 (D.C. Cir. 1999) (“Although the inference petitioner
would draw as to the statute’s meaning is not by any means
unreasonable, it is also not inevitable.”).
6
The parties focus on the word “knowingly,” debating
whether that adverb modifies the phrase “of another person.”
But a simple diagram of the relevant statutory text readily
demonstrates that, from a grammatical point of view, this is
not the correct question:
uses means
of
kn
a
identification
ow
ing
person
of
ly
an
oth
er
The word “knowingly” technically modifies only the verb that
follows it (“uses”). It modifies neither the direct object
(“means”) nor the two prepositional phrases that follow (“of
identification of another person”). See ROBERT FUNK ET AL.,
THE ELEMENTS OF GRAMMAR FOR WRITERS 62 (MacMillan
1991) (“An adverb, in standard English, modifies almost
anything except a noun.”).
In the end, this grammatical observation is beside the
point given that the parties, as well as relevant case law
interpreting similarly structured statutes (cases we discuss
below), are best understood as using the word “modify” more
loosely, equating it with words such as “apply,” “extend,” or
“attach.” See, e.g., United States v. X-Citement Video, Inc.,
513 U.S. 64, 73 (1994); Liparota v. United States, 471 U.S.
419, 424-25 n.7 (1985); United States v. Nofziger, 878 F.2d
442, 446 (D.C. Cir. 1989). Thus, framing the question in
terms of statutory interpretation, we ask how far section
7
1028A(a)(1)’s mens rea requirement—“knowingly”—reaches
in the statute.
That question requires us to focus on the statute’s direct
object, “means.” “Means” is modified by the prepositional
phrase “of identification,” which, in turn, is modified by a
second prepositional phrase, “of another person.” As the
government concedes, the mens rea requirement must extend
at least to the direct object’s principal modifier, “of
identification.” Were it otherwise, a person could be
convicted for “knowingly us[ing] or transfer[ring],” without
lawful authority, anything at all that happened to contain a
means of identification. As one district court explained:
If during a bank fraud conspiracy, I hand a
defendant a sealed envelope asking her to
transfer it and its contents to another and she
knowingly does so, she has knowingly
transferred the envelope and its contents. But
if she believes my statement that the envelope
contains only a birthday card when in fact it
contains a forged social security card, the
government surely would not contend that she
should receive the enhanced penalty.
United States v. Godin, 476 F. Supp. 2d 1, 2 (D. Me. 2007).
And it goes without saying that the mens rea requirement
must also reach beyond the bare direct object “means” to its
first modifying phrase “of identification,” lest the sentence
become gibberish: “knowingly using a means” means
nothing.
But what of the second and crucial prepositional phrase
“of another person”? Does section 1028A(a)(1)’s mens rea
requirement apply to it as well? The government is certainly
8
correct that the statute’s knowledge requirement might apply
only to the direct object’s first prepositional phrase, thereby
criminalizing “knowingly transfer[ing], possess[ing], or
us[ing] . . . a means of identification” that happens to belong
to another. Indeed, as the dissent points out, Congress knows
how to draft a statute that unambiguously extends a mens rea
requirement to various elements in the statutory text. See
Dissenting Op. at 12 (citing 18 U.S.C. § 1546(a)). But with
regard to section 1028A(a)(1), the defendant’s view—that the
statute’s mens rea requirement extends all the way to “of
another person”—is at least equally plausible. Neither the
government nor the dissent offers a convincing reason, nor are
we aware of one, demanding the statute’s mens rea
requirement halt after “of identification” rather than proceed
to “of another person.” Indeed, the Model Penal Code adopts
as a general principle of construction a rule under which,
absent evidence to the contrary, the mens rea requirement
encompasses all material elements of an offense. See MODEL
PENAL CODE § 2.02(4) (1985) (“When the law defining an
offense prescribes the kind of culpability that is sufficient for
the commission of an offense, without distinguishing among
the material elements thereof, such provision shall apply to all
the material elements of the offense, unless a contrary purpose
plainly appears.”); see also X-Citement Video, 513 U.S. at 79
(Stevens, J., concurring) (“[T]he normal, commonsense
reading of a subsection of a criminal statute introduced by the
word ‘knowingly’ is to treat that adverb as modifying each of
the elements of the offense identified in the remainder of the
subsection.”).
A simple rewrite of the statute further underscores the
plausibility of Villanueva-Sotelo’s interpretation. Suppose
section 1028A(a)(1) had read, “whoever knowingly uses . . .
another person’s means of identification.” Written that way,
the statute would most plausibly require proof that the
9
defendant actually knew the means of identification used
belonged to someone else, and as government counsel agreed
at oral argument, the phrases “means of identification of
another person” and “another person’s means of
identification” carry precisely the same meaning. Oral Arg. at
5:13-:33, 7:49-8:02. True, Congress used a cumbersome
prepositional phrase rather than the more elegant possessive
form, but we see nothing of significance in that syntactic
choice.
Two additional factors reinforce our conclusion that
section 1028A(a)(1) is ambiguous. First, the next provision
of the same statute, section 1028A(a)(2), increases penalties
for identity theft perpetrated in connection with “[t]errorism
offense[s].” 18 U.S.C. § 1028A(a)(2). Structured nearly
identically to subsection (a)(1), that provision reads:
Whoever, during and in relation to any felony
violation enumerated in section
2332b(g)(5)(B), knowingly transfers,
possesses, or uses, without lawful authority, a
means of identification of another person or a
false identification document shall, in addition
to the punishment provided for such felony, be
sentenced to a term of imprisonment of 5
years.
Id. (emphasis added). The government concedes that section
1028A(a)(2)’s knowledge requirement must apply to the
whole phrase “false identification document.” Oral Arg. at
8:43-:58, 9:30-:48. Thus, as a matter of pure textual distance,
the mens rea requirement travels farther in subsection (a)(2)
than the government claims possible in subsection (a)(1).
Indeed, under the government’s interpretation, “knowingly”
must skip over the contested phrase “of another person” and
10
then, suddenly resuming its influence, apply to “false
identification document.” Moreover, if Congress had
intended section 1028A(a)(2)’s mens rea requirement to reach
beyond “identification document” to embrace the fact of its
falsity, it seems equally likely that Congress intended a
parallel application regarding the phrase “means of
identification of another person”—precisely the same
language at issue in section 1028A(a)(1). As the Supreme
Court has observed, “it is difficult to conclude that the word
‘knowingly’ modifies one of the elements in [a] subsection[]
. . . but not the other.” X-Citement Video, 513 U.S. at 77-78.
And if “knowingly transfers, possesses, or uses” acts upon the
direct object and its modifiers in subsection (a)(2), we think it
quite reasonable to conclude that it could do the same in
subsection (a)(1).
Second, we have previously found similarly structured
statutes to be ambiguous. For instance, in United States v.
Nofziger, 878 F.2d 442, we considered a statute prohibiting
former government employees from lobbying their former
agencies. In relevant part, that statute prohibited covered
employees from “knowingly . . . with the intent to influence,
mak[ing] any oral or written communication . . . to the
department or agency in which he served . . . in connection
with any . . . particular matter . . . in which such department or
agency has a direct and substantial interest.” 18 U.S.C. §
207(c) (1982) (emphasis added). There, as here, “[t]he
principal dispute in th[e] case [was] over the reach of the
word ‘knowingly.’” Nofziger, 878 F.2d at 444. While
Nofziger, a former White House advisor convicted under this
statute for improperly communicating with his former
employer, argued that the government had to “show[] that he
had knowledge that the agency had a ‘direct or substantial’
interest in the matter,” the government urged a more limited
application of the statute’s mens rea requirement. Id. at 446.
11
Ultimately agreeing with Nofziger and observing that the
statute was “hardly a model of clarity,” id. at 445 (citation
omitted), we found the provision ambiguous, stating that
“‘knowingly’ can reasonably be read to apply to all elements
of the . . . offense, including the ‘direct or substantial interest’
element.” Id. at 447; see also id. (“[T]he . . . language . . .
clearly permits the inference that ‘knowingly’ attaches to all
elements of the . . . offense.”). So too here. Text alone
cannot resolve this case because “knowingly” may “apply to
all elements of the . . . offense,” id., including the requirement
that the identification used belong to “another person.”
Likewise, in United States v. Chin, 981 F.2d 1275 (D.C.
Cir. 1992), we confronted a statute making it a crime for any
adult “knowingly and intentionally” to “employ, hire, use,
persuade, induce, entice, or coerce, a person under eighteen
years of age to assist in avoiding detection or apprehension
for any [listed federal drug offense].” 21 U.S.C. § 861(a)(2).
Again observing that the statute was “not a model of
meticulous drafting,” we explained that “[o]ne cannot tell
from the words alone whether the person’s juvenile status
must be known . . . or whether it suffices that the act of using
a person to avoid detection be ‘knowing[] and intentional[].’”
Chin, 981 F.2d at 1279 (emphasis added) (second and third
alterations in original). Here, faced with similarly ambiguous
text, we “cannot tell from the words alone,” id., whether
section 1028A(a)(1) requires the defendant to know the means
of identification he used belonged to another person, or
whether it suffices that the act of “transfer[ring], possess[ing],
or us[ing] . . . a means of identification” be done
“knowingly.” 18 U.S.C. § 1028A(a)(1). To be sure, in Chin
we ultimately held that the statute required no proof the
defendant knew the person used was a minor, but we did so
only after investigating the statute’s purpose and finding
Congress’s intent to protect minors as a class “fairly implied.”
12
981 F.2d at 1280. Although the government now urges us to
follow Chin by refusing to extend “knowingly” throughout
section 1028A(a)(1), it ignores Chin’s holding that text alone
failed to resolve the case.
The Supreme Court has also provided useful guidance on
how to interpret statutes constructed like section 1028A(a)(1).
In Liparota v. United States, 471 U.S. 419, the Court wrestled
with a federal food stamp statute that read: “[W]hoever
knowingly uses, transfers, acquires, alters, or possesses
coupons or authorization cards in any manner not authorized
by [law]” is subject to a fine and imprisonment. 7 U.S.C. §
2024(b)(1) (1982). The parties disputed whether the statute’s
knowledge requirement applied to the phrase “in any manner
not authorized by [law].” Text alone, the Court explained,
provided no answer:
Congress has not explicitly spelled out the
mental state required. Although Congress
certainly intended by use of the word
“knowingly” to require some mental state with
respect to some element of the crime defined in
[the statute], the interpretations proffered by
both parties accord with congressional intent to
this extent. Beyond this, the words themselves
provide little guidance. Either interpretation
would accord with ordinary usage.
Id. at 424 (third emphasis added). By way of analogy, the
Court made the same point in a footnote:
Still further difficulty arises from the
ambiguity which frequently exists concerning
what the words or phrases in question modify.
What, for instance, does “knowingly” modify
13
in a sentence from a “blue sky” law criminal
statute punishing one who “knowingly sells a
security without a permit” from the securities
commissioner? To be guilty must the seller of
a security without a permit know only that
what he is doing constitutes a sale, or must he
also know that the thing he sells is a security,
or must he also know that he has no permit to
sell the security he sells? As a matter of
grammar the statute is ambiguous; it is not at
all clear how far down the sentence the word
“knowingly” is intended to travel—whether it
modifies “sells,” or “sells a security,” or
“sells a security without a permit.”
Id. at 424-25 n.7 (emphasis added) (quoting W. LAFAVE & A.
SCOTT, CRIMINAL LAW § 27 (1972)); see also Arthur
Andersen LLP v. United States, 544 U.S. 696, 705 (2005)
(“We have recognized with regard to similar statutory
language that the mens rea at least applies to the acts that
immediately follow, if not to other elements down the
statutory chain.” (emphasis added)).
As in the statutes at issue in Liparota, Chin, and Nofziger,
the word “knowingly” appears in section 1028A(a)(1) before
a verb or series of verbs, a direct object, and at least one other
term further describing that object. Here, as in those cases,
the government and defendant contest the knowledge
requirement’s reach. And here, as in those cases, “either
interpretation would accord with ordinary usage.” Liparota,
471 F.2d at 424.
Ignoring the Supreme Court’s clear finding that text
alone cannot resolve statutes structured this way, the
government and dissent argue that Liparota, reinforced by X-
14
Citement Video, demonstrates that the Court will extend a
knowledge requirement only when failing to do so could
criminalize otherwise innocent conduct—a concern not
present here because section 1028A(a)(1) requires a predicate
felony offense. See Dissenting Op. at 14-19. True, the Court
has found it “particularly appropriate” to extend a mens rea
requirement when failure to do so would result in a statute
criminalizing nonculpable conduct. Arthur Andersen, 544
U.S. at 703; Liparota, 471 U.S. at 426; see also Staples, 511
U.S. at 610 (“[We have taken] particular care . . . to avoid
construing a statute to dispense with mens rea where doing so
would ‘criminalize a broad range of apparently innocent
conduct.’” (quoting Liparota, 471 U.S. at 426)). But the
Court has never held that avoiding such a result is the only
reason to do so. Thus, while “[t]he presumption in favor of
scienter requires a court to read into a statute only that mens
rea which is necessary to separate wrongful conduct from
‘otherwise innocent conduct,’” Carter v. United States, 530
U.S. 255, 269 (2000) (emphasis added) (quoting X-Citement
Video, 513 U.S. at 72), courts may extend a mens rea
requirement when ordinary tools of statutory interpretation—
text, structure, purpose, and legislative history—compel that
result. Accordingly, Liparota’s concern with criminalizing
nonculpable conduct has no bearing on the threshold issue
before us—whether section 1028A(a)(1) is ambiguous.
In answering that question in the affirmative, we
acknowledge, as the government emphasizes, that the Fourth
Circuit reached the opposite conclusion in United States v.
Montejo, 442 F.3d 213 (4th Cir. 2006), cert. denied, 127 S.
Ct. 366 (2007). Finding section 1028A(a)(1) unambiguous,
our neighboring circuit reasoned that “as a matter of common
usage, ‘knowingly’ does not modify the entire lengthy
predicate that follows it.” Id. at 215. Although the Eleventh
Circuit, along with several district courts, has adopted this
15
interpretation, see, e.g., United States v. Hurtado, 508 F.3d
603 (11th Cir. 2007) (per curiam); United States v. Godin,
489 F. Supp. 2d 118 (D. Me. 2007); United States v.
Contreras-Macedas, 437 F. Supp. 2d 69 (D.D.C. 2006), other
district courts have found section 1028A(a)(1) ambiguous and
embraced the defendant’s view. See United States v. Salazar-
Montero, __ F. Supp. 2d __, No. CR 07-2020-MWB, 2007
WL 3102096 (N.D. Iowa Oct. 25, 2007); United States v.
Beachem, 399 F. Supp. 2d 1156 (W.D. Wash. 2005).
We respectfully disagree with Montejo. Although the
court there correctly concluded that the adverb “knowingly”
modifies only the verbs “transfers, possesses, [and] uses,” see
442 F.3d at 215 (alteration in original), that grammatical
observation, as explained above, fails to resolve the key
question, namely, how far does the statute’s mens rea
requirement extend? Montejo’s observation that “knowingly”
must rest “adjacent to the words it modifies, as close as it can
get” provides no help either. Id. at 216. As one district court
interpreting section 1028A(a)(1) observed, “‘knowingly’ has
been placed as close as possible to the entire, indivisible
predicate: ‘transfers, possesses, or uses, without lawful
authority, a means of identification of another person.’”
Salazar-Montero, 2007 WL 3102096, at *9. Moreover,
Liparota’s observation that statutes structured like
1028A(a)(1) are ambiguous “[a]s a matter of grammar,” 471
U.S. at 425 n.7, fatally undermines Montejo’s reliance on
“common usage.” 442 F.3d at 215. Indeed, the Fourth
Circuit expressly acknowledged that in Liparota the Court
found both “interpretation[s] of the scope of the term
‘knowingly’ . . . in accord with common usage.” Id. at 216.
III.
Having found section 1028A(a)(1) ambiguous, “we seek
guidance in the statutory structure, relevant legislative history,
16
[and] congressional purposes expressed in the [statute].” Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 737 (1985).
According to the government, the legislative history
demonstrates that “Congress intended to criminalize the
knowing possession of fraudulent identity documents, even if
the defendants lacked the specific knowledge that they
possessed a real person’s means of identification.”
Appellant’s Opening Br. 18. The dissent agrees. See
Dissenting Op. at 8. Reading the legislative history
differently, Villanueva-Sotelo argues that Congress intended
to target identity theft and the thieves who perpetrate it, rather
than to create a sentencing enhancement for individuals who
use fraudulent identifying information belonging purely by
happenstance to someone else. Again, we agree with
Villanueva-Sotelo.
We begin with section 1028A’s title: “[a]ggravated
identity theft.” See Almendarez-Torres v. United States, 523
U.S. 224, 234 (1998) (“[T]he title of a statute and the heading
of a section are tools available for the resolution of a doubt
about the meaning of a statute.” (citation and internal
quotation marks omitted)); see also Pa. Dep’t of Corrections
v. Yeskey, 524 U.S. 206, 212 (1998) (“For interpretive
purposes, [the title is] of use only when [it] shed[s] light on
some ambiguous word or phrase.” (second and third
alterations in original) (citation and internal quotation marks
omitted)). As that title demonstrates, the statute concerns
“theft,” i.e., “the felonious taking and removing of personal
property with intent to deprive the rightful owner of it.”
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2369
(1993) (emphasis added); see also BLACK’S LAW DICTIONARY
1516 (8th ed. 2004) (“The felonious taking and removing of
another’s personal property with the intent of depriving the
true owner of it.”). Yet Villanueva-Sotelo, having had no
idea that his forged alien registration number belonged to
17
anyone at all, couldn’t possibly have had the intent to deprive
another person of his or her identity. True, Villanueva-Sotelo
had a guilty mind—he knowingly presented a fake permanent
resident card to D.C. police officers—but he pled guilty to
precisely that charge in the indictment’s second count and is
being punished accordingly.
Judge Friedman’s colloquy with the prosecutor, see supra
at 3-4, reveals just how far the government’s interpretation
departs from the statute’s focus on “theft.” As the
government argued in the district court and reiterated at oral
argument here, a defendant could pick a series of numbers out
of the air and win two extra years in prison if those numbers
happened to coincide with an assigned identification number,
yet escape punishment under section 1028A(a)(1) had he
picked a slightly different string of random numbers. See
Hr’g Tr. at 15, 48. That’s not theft. Judge Friedman could
not square the government’s position with congressional
intent, nor can we.
That Congress intended section 1028A(a)(1) to single out
thieves—in the traditional sense of the word—for enhanced
punishment finds additional support in the statute’s legislative
history. Frustrated that “many identity thieves receive short
terms of imprisonment or probation,” H.R. Rep. No. 108-528,
at 3 (2004), reprinted in 2004 U.S.C.C.A.N. 779, 780,
Congress passed section 1028A(a)(1) as part of the Identity
Theft Penalty Enhancement Act, Pub. L. No. 108-275, 118
Stat. 831 (2004). The House Judiciary Committee Report
accompanying the Act repeatedly emphasizes Congress’s
intent to target and punish “identity thieves” who “steal
identities to commit terrorist acts, immigration violations,
firearms offenses, and other serious crimes.” H.R. Rep. No.
108-528, at 3 (emphases added). The report further explains:
“The terms ‘identity theft’ and ‘identity fraud’ refer to all
18
types of crimes in which someone wrongfully obtains and
uses another person’s personal data in some way that involves
fraud or deception, typically for economic or other gain,
including immigration benefits.” Id. at 4. Although whether
a person who imagines a string of random numbers has
“wrongfully obtain[ed]” personal data is debatable, section
1028A(a)(1)’s legislative history demonstrates that at least for
purposes of this statute, Congress has already answered that
question in the negative. The House Report describes identity
theft in detail, providing a series of examples of how one
“wrongfully obtains” another person’s personal data. The
report first describes how “identity thieves” operate,
explaining that they
obtain[] individuals’ personal information for
misuse not only through “dumpster diving,”
but also through accessing information that
was originally collected for an authorized
purpose. The information is accessed either by
employees of the company or of a third party
that is authorized to access the accounts in the
normal course of business, or by outside
individuals who hack into computers or steal
paperwork likely to contain personal
information.
Id. at 4-5. The report then lists a string of cases in which
convicted identity thieves escaped with relatively light
sentences, all of which involved defendants who, unlike
Villanueva-Sotelo, knew the identification they used belonged
to another. Focusing on the immigration context, the report
mentions a case in which a Mexican resident obtained federal
benefits by using “the name and Social Security number of his
former brother-in-law, a U.S. citizen.” Id. at 6. Other
examples cited include a woman who used her husband’s
19
social security number to obtain disability benefits, a health
club worker who used a “skimmer” to obtain credit card data
from the club’s members, and a bank employee who accessed
the bank’s computer files to obtain customer account
information. Id. at 5-6. In each of these examples, the thief
knew the stolen information belonged to another person—
indeed, that was the very essence of the crime.
The floor debate reveals a similar emphasis on theft.
Representative Sensenbrenner, the House Judiciary
Committee Chair and the bill’s floor manager, explained,
“This legislation will allow prosecutors to identify identity
thieves who steal an identity, sometimes hundreds or even
thousands of identities, for purposes of committing one or
more crimes.” 150 Cong. Rec. H4809 (daily ed. June 23,
2004) (statement of Rep. Sensenbrenner). Representative
Carter, the Act’s author and lead sponsor, likewise explained
that the legislation would “facilitate the prosecution of
criminals who steal identities in order to commit felonies,”
recounting a case in which a “Texas driver’s license bureau
clerk pleaded guilty to selling ID cards to illegal immigrants
using stolen information from immigration papers.” Id. at
H4810 (statement of Rep. Carter). At no point in the
legislative record did anyone so much as allude to a situation
in which a defendant “wrongfully obtain[ed]” another
person’s personal information unknowingly, unwittingly, and
without intent.
In support of the contrary position—that Congress
targeted not just thieves, but also anyone using a false
identification document happening to belong to another
person—the government directs us to the following language
from the House Report:
20
This section amends Title 18 to provide for a
mandatory consecutive penalty enhancement
of 2 years for any individual who knowingly
transfers, possesses, or uses the means of
identification of another person in order to
commit a serious Federal predicate offense
( . . . including immigration violations, false
citizenship crimes, firearms offenses, and other
serious crimes).
H.R. Rep. No. 108-528, at 10. But as the Supreme Court
stated when confronting similarly unilluminating legislative
history, “[w]e fail to see how this sentence, which merely
parrots the terms of the statute, offers any enlightenment as to
what those terms mean.” Liparota, 471 U.S. at 430-31 n.13.
As for the long list of examples evincing the statute’s
focus on intentional theft, the government and our dissenting
colleague argue that Congress wished to highlight only the
most egregious examples of identity theft without limiting the
statute’s reach to those examples. See Dissenting Op. at 7.
This point would carry more weight were the list the only
evidence of congressional intent. But it isn’t. Viewing the
list in combination with the statute’s title and the legislative
record as a whole, we think it clear that Congress never
intended its “aggravated identity theft” statute to reach
conduct like Villanueva-Sotelo’s.
Next, pointing to some of the same legislative history
recounted above, the government and dissent contend that
Congress desired to make it easier for prosecutors “to convict
identity thieves” and to enhance their punishments
accordingly. H.R. Rep. No. 108-528, at 10; Dissenting Op. at
9. We agree, but that begs the question before us: did
Congress consider a defendant like Villanueva-Sotelo to be an
21
identity thief subject to prosecution under this statute? All of
the legislative history the government cites presupposes the
answer to that question.
Finally, the government urges us to disregard the “brief”
legislative discussion surrounding section 1028A(a)(1),
Appellant’s Opening Br. 18, and to look instead to section
1028(a)(7), a nearby provision amended at the same time
Congress passed section 1028A(a)(1). See 18 U.S.C. §
1028(a)(7) (“Whoever . . . knowingly transfers, possesses, or
uses, without lawful authority, a means of identification of
another person with the intent to commit, or to aid or abet, or
in connection with, any unlawful activity that constitutes a
violation of Federal law . . . shall be punished as provided
. . . .”). Because we find plenty in section 1028A’s legislative
history revealing congressional intent regarding that
provision, we see little reason to look to other statutes for
guidance. In any event, the legislative discussion surrounding
section 1028(a)(7) offers the government no help. Congress
amended section 1028(a)(7) to ease the prosecution of identity
thieves who intend to use “another person’s means of
identification” (note the use of the possessive form, see supra
at 8-9) to commit a felony, but have not yet actually done so.
See H.R. Rep. No. 108-528, at 10-11. This tells us nothing
about whether conduct like Villanueva-Sotelo’s amounts to
“identity theft” in the first place. Moreover, according to the
House Report, the amendment targeted those “who knowingly
facilitate the operations of an identity-theft ring by stealing,
hacking, or otherwise gathering in an unauthorized way other
people’s means of identification, but who may deny that they
had the specific intent to engage in a particular fraud
scheme.” Id. at 11. Far removed from the issue we face here,
that scenario underscores the extent to which Congress
intended to single out and punish those who knowingly steal
others’ identities.
22
In short, there is a salient difference between theft and
accidental misappropriation. While Villanueva-Sotelo surely
misappropriated someone else’s alien registration number, no
evidence shows he stole it in any meaningful sense. As the
first district court to interpret this statute observed, and as the
government concedes, “it is odd—and borders on the
absurd—to call what [the defendant] did ‘theft.’” United
States v. Montejo, 353 F. Supp. 2d 643, 654 (E.D. Va. 2005),
aff’d, 442 F.3d 213; see also No Need to Show ID Theft for an
ID Theft Conviction, 30 NAT’L L.J., Dec. 3, 2007, at 14
(describing the Eleventh Circuit’s decision in United States v.
Hurtado, 508 F.3d 603). But “theft” is precisely what
Congress targeted when it passed section 1028A(a)(1).
Because Congress intended to express “the moral
condemnation of the community,” United States v. Bass, 404
U.S. 336, 348 (1971), by enhancing penalties for thieves who
steal identities, we hold that section 1028A(a)(1)’s mens rea
requirement extends to the “[a]ggravated identity theft”
statute’s defining element—that the means of identification
used belongs to another person.
Even if we harbored any doubt about this—that is, were
we unable to find “an unambiguous intent on the part of
Congress”—we would “turn to the rule of lenity to resolve the
dispute.” United States v. West, 393 F.3d 1302, 1311 (D.C.
Cir. 2005); see also Moskal v. United States, 498 U.S. 103,
108 (1990) (“[W]e have always reserved lenity for those
situations in which a reasonable doubt persists about a
statute’s intended scope even after resort to ‘the language and
structure, legislative history, and motivating policies’ of the
statute.” (quoting Bifulco v. United States, 447 U.S. 381, 387
(1980))). Although “[t]he rule of lenity is not invoked by a
grammatical possibility” and “does not apply if the
ambiguous reading relied on is an implausible reading of the
23
congressional purpose,” Caron v. United States, 524 U.S.
308, 316 (1998), the defendant’s reading is quite plausible.
Thus, even if the legislative history failed to resolve the
statute’s ambiguity, the rule of lenity would forbid us from
“interpret[ing] a federal criminal statute so as to increase the
penalty that it places on an individual when such an
interpretation can be based on no more than a guess as to what
Congress intended.” Ladner v.United States, 358 U.S. 169,
178 (1958).
IV.
We have several additional reactions to the dissent. To
begin with, its view of the statute is not entirely clear. The
dissent first seems to agree that section 1028A(a)(1) is
ambiguous, relying on legislative history to discern the
statute’s meaning. See Dissenting Op. at 4-10. Elsewhere,
however, the dissent concludes that the statute’s text is clear,
making resort to legislative history and congressional intent
unnecessary. See id. at 11-12.
The dissent accuses us of grafting a common-law
definition of theft onto the statute when what is required is
“construction of the statute and . . . inference of the intent of
Congress.” Id. at 5 (quoting Staples, 511 U.S. at 605). But as
our discussion indicates, see supra at 15-22, we have done
just what the dissent urges: construed the statute and inferred
Congress’s intent using the everyday definition of “theft”—as
found in section 1028A’s title and throughout its legislative
history—as but one tool among others.
The dissent next points to the same House Report
language we do, see supra at 17-18, namely that “[t]he terms
‘identity theft’ and ‘identity fraud’ refer to all types of crimes
in which someone wrongfully obtains and uses another
person’s personal data in some way that involves fraud or
24
deception.” H.R. Rep. No. 108-528, at 4. According to the
dissent, this sentence, particularly its reference to “identity
fraud,” means that “identity ‘theft’” must “be read
generically.” Dissenting Op. at 6. Given the legislative
record’s overwhelming number of references to “theft,”
“thieves,” and “stealing,” plus the statute’s title and the
Judiciary Committee’s many citations to examples of
knowing theft, the report’s passing references to “identity
fraud” hardly support a conclusion that Congress clearly
intended to impose two additional years of punishment on a
defendant who happens to pick a number that turns out to
belong to someone else rather than one assigned to no one. In
any case, unlike the dissent, we are prepared to acknowledge
that although the vast weight of the legislative history
supports our interpretation, some bits of it arguably cut the
other way—namely, the evidence the dissent cites in support
of its claim that “a primary purpose of the statute was to”
ensure “that the punishment more closely fits the harm the
crime causes its victim.” See Dissenting Op. at 8 & n.9. This
concession, however, merely reinforces the need for the rule
of lenity to resolve any remaining ambiguities, for “where
text, structure, and history fail to establish that the
Government’s position is unambiguously correct[,] we apply
the rule of lenity and resolve the ambiguity in [the
defendant]’s favor.” United States v. Granderson, 511 U.S.
39, 54 (1994).
The dissent cites a series of cases in which defendants
engaged in otherwise culpable conduct were required to
“ascertain at [their] peril whether [their actions] c[a]me[]
within the inhibition of the statute.” Dissenting Op. at 18
(quoting United States v. Freed, 401 U.S. 601, 609 (1971)).
Unlike in those cases, however, here we have evidence that
Congress intended to limit section 1028A(a)(1) to theft, and
25
we are bound to interpret the statute in light of that expressed
intent.
Next, the dissent points to 18 U.S.C. § 1546(a), which
provides that “[w]hoever knowingly . . . uses . . . [an] alien
registration receipt card . . . knowing it to be forged . . . [s]hall
be fined under this title or imprisoned.” Id. (emphasis added).
Reading this statute in pari materia with section 1028A(a)(1),
which contains no similar repetition of the knowledge
requirement, the dissent concludes that Congress could not
have intended section 1028A(a)(1) to require a showing that
the defendant knew the means of identification used belonged
to another person. See Dissenting Op. at 12-13 & n.12. Even
assuming the in pari materia doctrine applies here, sections
1546(a) and 1028A(a)(1) are easily harmonized when read in
tandem: defendants who use a false alien registration number
are punished under the former statute (as was Villanueva-
Sotelo), while those who know that number belongs to
someone else receive two additional years under the latter.
In any event, we doubt whether in pari materia applies to
these statutes. As the very treatise cited by our dissenting
colleague explains, courts often ask four questions when
deciding if statutes are similar enough to justify reading them
in pari materia. The answers to all four questions counsel
against applying the canon here. First, were “the two statutes
. . . contained in the same legislative act”? 2B NORMAN J.
SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 51:3 (6th
ed. 2000 & Supp. 2007-2008). Here, they weren’t. Second,
do the two statutes require “the same elements of proof”? Id.
Here, as the dissent emphasizes, they don’t. See Dissenting
Op. at 14. Third, are the penalties the same for both statutes?
2B SINGER, supra, § 51:3. Here, they’re not. And finally,
were the two statutes “obviously designed to serve the same
purpose and objective”? Id. Answering this last question
26
requires a bit more explanation. As the dissent points out,
section 1028A(c)(7), which lists the many predicate offenses
triggering the aggravated identity theft statute, incorporates by
reference section 1546(a), and both statutes involve
“possession of a false means of identification.” Dissenting
Op. at 13 n.12. True enough, but section 1028A references as
predicate offenses a myriad of other federal statutes whose
subject matter includes such disparate topics as immigration,
social security, embezzlement of public funds, visas, and
firearms. See 18 U.S.C. § 1028A(c) (listing predicate felony
offenses). We think it stretches the in pari materia canon
beyond reason to apply it to such a wide swath of the United
States Code. As for the dissent’s observation that sections
1546(a) and 1028A share the same subject matter,
“[c]haracterization of the object or purpose is more important
than characterization of subject matter in determining whether
different statutes are closely enough related to justify
interpreting one in light of the other.” 2B SINGER, supra, §
51:3. Here, the dissent claims that in passing the Identity
Theft Penalty Enhancement Act, Congress’s “central concern
[was] the damage caused by the wrongful use of another
person’s identity.” Dissenting Op. at 8 n.9. That purpose, it
goes without saying, differs from the one that animated
section 1546(a)—a statute Congress first passed in its current
form in 1948, long before “identity theft” entered the criminal
lexicon or captured Congress’s attention a half-century later.
See United States v. Campos-Serrano, 430 F.2d 173, 175 (7th
Cir. 1970) (recounting the legislative history of 18 U.S.C. §
1546); see also Identity Theft and Assumption Deterrence Act
of 1998, Pub. L. No. 105-318, 112 Stat. 3007 (1998)
(amending 18 U.S.C. § 1028 to include a section on identity
theft).
Of greater relevance to this case is a related canon of
statutory construction: the “general principle . . . that when
27
‘Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.’” Sigmon
Coal, 534 U.S. at 452 (emphasis added) (quoting Russello v.
United States, 464 U.S. 16, 23 (1983)). As we noted above,
see supra at 9-10, subsection 1028A(a)(2)—the terrorism
offense provision—makes it a crime knowingly to use “a
means of identification of another person or a false
identification document,” id. (emphasis added), while
subsection (a)(1)—the general offense provision—never
mentions “false identification document[s].” Had Congress
parroted subsection (a)(2)’s “false identification document”
language in subsection (a)(1), Villanueva-Sotelo’s guilt would
be plain. But Congress omitted that language for the two-year
“general” offense enhancement while including it for the five-
year “terrorism offense” enhancement—a decision that makes
eminent sense given Congress’s heightened concern with the
terrorist threat facing our country. See H.R. Rep. No. 108-
528, at 4 (explaining that “terrorist organizations increasingly
turn to stolen identities to hide themselves from law
enforcement”). We see no reason to read subsection (a)(2)’s
language into subsection (a)(1) when Congress clearly could
have placed it there itself.
After concluding that “dueling canons of statutory
construction” might fail to resolve the statute’s inherent
ambiguity, the dissent appeals to “common sense” as an
interpretive aide. Dissenting Op. at 15. First off, there is no
duel: as we just explained, the canon the dissent cites is either
inapplicable or supports our interpretation. More to the point,
although common sense certainly plays a role in statutory
construction, common sense does not excuse us from
engaging in the thorny task of determining what Congress
intended when it passed a statute. And here, in any event, to
28
return once more to Judge Friedman’s hypothetical, common
sense tells us that a defendant ought not receive two
additional years of incarceration for picking one random
number rather than another—unless, of course, Congress has
made clear that he should. Put another way, it’s only
common sense to conclude that conviction under an identity
theft statute requires actual theft.
Finally, reproducing a troubling news report from 2006—
which was not before Congress when it passed the Identity
Theft Penalty Enhancement Act two years earlier—showing
how one victim’s social security number was used by eighty-
one different people across the country, see Dissenting Op. at
10 n.11, the dissent wonders if Congress really could have
intended to punish those individuals who knew they had
stolen a real person’s number more severely than those who
did not. The short answer to that question is yes. We see
nothing unfathomable about Congress singling out certain
morally culpable conduct for enhanced punishment, and
section 1028A(a)(1)’s text, title, and legislative history reveal
that Congress did precisely that. And again, even if the
dissent’s reading is plausible, it is hardly inescapable—which
leads us back to the rule of lenity. When and if Congress
considers cases like the one described in the 2006 news
article, it may well decide to extend the “[a]ggravated identity
theft” statute’s reach, or to enhance the penalty still further.
But that’s a decision for Congress, not this court.
V.
Two final points. First, we doubt that our interpretation
of section 1028A(a)(1) will saddle the government with a
burden it cannot meet. In each of the examples Congress
cited, see supra at 18-19—as in most run-of-the-mill identity
theft cases—proving the defendant knew the stolen
identification belonged to another person should present no
29
major obstacle, as such knowledge will often be demonstrated
by the circumstances of the case. For instance, when an
individual obtains personal information by trolling through
the victim’s garbage or by improperly viewing files to which
the perpetrator gains access, he obviously knows the
information belongs to someone else. And when an identity
thief establishes credit, conducts transactions, or secures
benefits in the victim’s name, the crime would make little
sense if the information at issue belonged to no one. In that
sense, this case differs from Chin, in which we found it
“implausible that Congress would have placed on the
prosecution the often impossible burden of proving, beyond a
reasonable doubt, that a defendant knew the youth he enticed
was under eighteen.” Chin, 981 F.2d at 1280. And if
experience proves our prediction wrong and the burden too
onerous, the government is free to ask Congress to limit the
statute’s knowledge requirement.
Second, as noted above, our interpretation does not mean
that Villanueva-Sotelo escapes punishment for his crime, for
he pled guilty to violating 18 U.S.C. § 1546(a), which
provides: “Whoever knowingly . . . uses, attempts to use,
possesses, obtains, accepts, or receives . . . [an] alien
registration receipt card . . . knowing it to be forged . . . [s]hall
be fined under this title or imprisoned.” Unlike section
1028A(a)(1), that statute unambiguously criminalizes
Villanueva-Sotelo’s conduct. We affirm.
So ordered.
KAREN LECRAFT HENDERSON Circuit Judge, dissenting:
At issue in this case is the proper interpretation of the
following language of the Identity Theft Penalty Enhancement
Act, Pub. L. 108-275, § 2(a), 118 Stat. 831 (ITPEA):
Whoever, during and in relation to any felony violation
enumerated in subsection (c), knowingly transfers,
possesses, or uses, without lawful authority, a means of
identification of another person shall, in addition to the
punishment provided for such felony, be sentenced to
a term of imprisonment of 2 years.
18 U.S.C. § 1028A(a)(1) (emphasis added).1 The majority
interprets this language to require that the Government prove
that the defendant knew “the ‘means of identification’ he
‘transfer[red], possesse[d], or use[d]’ actually belonged to
‘another person[.]’ ” Maj. Op. at 2 (quoting 18 U.S.C.
§ 1028A(a)(1)) (alterations in majority opinion). Because I
believe the majority misreads this language, I respectfully
dissent.
I.
The facts are not in dispute. Appellee Villanueva-Sotelo is
a Mexican national who has entered the United States illegally
at least three times and twice been returned to Mexico.2 On
1
Among the felony violations enumerated in subsection (c) is any
violation of “chapter 75 (relating to passports and visas).” 18 U.S.C.
§ 1028A(c)(7). Villanueva-Sotelo pleaded guilty to violating
subsection (7). See infra pp. 13–15.
2
On June 15, 1990, Villanueva-Sotelo was arrested in Oroville,
Washington for shoplifting. He pleaded guilty to misdemeanor theft
and was sentenced to 10 days in jail. On July 3, 1990, a United States
immigration judge ordered Villanueva-Sotelo’s removal from the
United States and he was deported to Mexico. See Factual Proffer in
Support of Guilty Plea 2. Villanueva-Sotelo re-entered the United
States and was again arrested in Washington State. He pleaded guilty
2
August 5, 2006, he was arrested and charged with, inter alia,
aggravated identity theft under section 1028A(a)(1) after he
presented a false Permanent Resident Card (Card)3 to an officer
of the Metropolitan Police Department (MPD) in the District of
Columbia. See Indictment 2. Although the Card bore
Villanueva-Sotelo’s name and photograph, it contained a
registration number assigned to another person. Villanueva-
Sotelo admits knowing the Card was false; however, he
contends that he did not know the registration number belonged
to another person. For its part, the Government concedes that it
cannot prove that Villanueva-Sotelo knew the number belonged
to another person. See Gov’t Br. 5.
On May 11, 2006, the Government charged Villanueva-
Sotelo with unlawful re-entry of a removed alien (8 U.S.C.
§ 1326(a) and (b)(1)) (Count 1), possession of false immigration
documents (18 U.S.C. § 1546(a)) (Count 2) and aggravated
identity theft (18 U.S.C. § 1028A(a)(1)) (Count 3). Villanueva-
to unauthorized re-entry of a removed alien (8 U.S.C. § 1326),
possession of false immigration documents (18 U.S.C. § 1546(a)) and
possession of five or more false identification documents with intent
to transfer (18 U.S.C. § 1028(a)(3)); he was sentenced to two months’
incarceration. On September 23, 1991 he was again ordered deported
to Mexico. See id.
3
Until 2003 the Card, commonly known as a “green card,” was
issued by the Immigration and Naturalization Service (INS) of the
U.S. Department of Justice. Since 2003, when many INS functions
were transferred to the newly-created Department of Homeland
Security, the U.S. Citizenship and Immigration Service (USCIS)
began issuing them. See 6 U.S.C. § 271(b); 8 U.S.C. § 1103. The
Card includes, inter alia, the alien’s name, photograph, date of birth,
country of origin, expiration date, fingerprint and an alien registration
number assigned to him by the USCIS. See, e.g., 8 U.S.C. §§ 1201,
1202(a)–(b), 1304(d) (requirements for immigrant visas); 8 C.F.R.
§ 264.5 (“Application for creation of record of permanent residence”).
3
Sotelo pleaded guilty to the first two counts but challenged the
aggravated identity theft count, arguing that under section
1028A(a)(1) the Government was required to establish that he
knew the Card he presented contained the registration number
“of another person.” The district court agreed and dismissed
Count 3, the aggravated identity theft count.4 The Government
then appealed and today the majority affirms the dismissal of
Count 3.
II.
At least two sister circuits have interpreted section
1028A(a)(1)’s language as unambiguously not requiring that the
defendant know that the false “means of identification” belongs
to another. United States v. Hurtado, 508 F.3d 603, 610 (11th
Cir. 2007); United States v. Montejo, 442 F.3d 213, 217 (4th
Cir.), cert. denied, 127 S.Ct. 366 (2006). A third circuit has
followed the Fourth Circuit’s rationale without additional
analysis. United States v. Hines, 472 F.3d 1038, 1039–40 (8th
Cir.), cert. denied, 128 S.Ct. 235 (2007). The majority’s
interpretation therefore causes a disfavored circuit split. See
United States v. Philip Morris USA Inc., 396 F.3d 1190, 1201
(D.C. Cir.) (“[W]e avoid creating circuit splits when
possible . . . .”), cert. denied, 546 U.S. 960 (2005).5 Its
4
The district court thereby disagreed with the earlier decision of
another district judge that section 1028A(a)(1) does not require the
Government to prove that “the identification numbers on the
fraudulent documents belonged to an actual person.” United States v.
Contreras-Macedas, 437 F. Supp. 2d 69, 76 (D.D.C. 2006).
5
At the district court level there is also disagreement. The District
of Maine first concluded that section 1028A(a)(1)’s mens rea
requirement applies to “of another person” (by submitting to the jury
the question whether the defendant knew her false means of
identification belonged to someone else), United States v. Godin, 476
F. Supp. 2d 1, 3 (D. Me. 2007); it then reversed field and adopted the
4
disagreement with the other circuits is two-fold: it first finds the
language ambiguous, see Maj. Op. at 4–15; it then construes the
ambiguity in the defendant’s favor. Maj. Op. at 22–23. Even if
the Fourth, Eighth and Eleventh Circuits incorrectly view the
language as unambiguous,6 I nonetheless agree with their
Fourth Circuit’s rationale. United States v. Godin, 489 F. Supp. 2d
118, 119 (D. Me. 2007). Other district courts have reached different
conclusions. Compare United States v. Beachem, 399 F. Supp. 2d
1156, 1158 (W.D. Wa. 2005) (§ 1028A(a)(1)’s knowledge
requirement applies to each element), and United States v.
Salazar-Montero, No. CR 07-2020, 2007 WL 3102096, at *13 (N.D.
Iowa Oct. 25, 2007) (same), with United States v. Montejo, 353 F.
Supp. 2d 643, 654 (E.D. Va. 2005) (§ 1028A(a)(1)’s knowledge
requirement does not modify “of another person”), and United States
v. Contreras-Macedas, 437 F. Supp. 2d 69, 79 (D.D.C. 2006) (same).
6
The decisions of the Supreme Court as well as of our Circuit have
held that similarly worded criminal statutes—i.e., statutes containing
the word “knowingly” followed by a verb or series of verbs, a direct
object and at least one prepositional phrase describing that object—are
ambiguous. See Liparota v. United States, 471 U.S. 419, 424, 425 n.7
(1985) (“ Either interpretation would accord with ordinary usage. ‘As
a matter of grammar the statute is ambiguous; it is not at all clear how
far down the sentence the word ‘knowingly’ is intended to
travel . . . .’ ” (quoting W. LaFave & A. Scott, Criminal Law § 27
(1972))); United States v. Chin, 981 F.2d 1275, 1279 (D.C. Cir. 1992)
(finding similarly structured criminal statute ambiguous: “One cannot
tell from the words alone whether the person’s juvenile status must be
known . . . .”), cert. denied, 508 U.S. 903 (1993); United States v.
Nofziger, 878 F.2d 442, 447(D.C. Cir. 1989) (finding similarly
structured criminal statute “ ‘is ambiguous. The statute can be read
either way.’ ” (quoting United States v. O’Brien, 686 F.2d 850, 852
(10th Cir. 1982)); cf. Arthur Andersen LLP v. United States, 544 U.S.
696, 705 (2005) (“We have recognized with regard to similar statutory
language that the mens rea at least applies to the acts that immediately
follow, if not to other elements down the statutory chain.”); see also
5
reading of the language that the Government need not establish
the defendant knew the false means of identification is that “of
another person.”
Because the majority views the provision as ambiguous, it
looks beyond the words to discern their meaning. It then
concludes that “ ‘the statutory structure, relevant legislative
history, [and] congressional purposes expressed in the
[statute]’ ” all support applying the knowledge requirement to
every element of section 1028A(a)(1). Maj. Op. at 15–16
(quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 737
(1985)) (alterations in majority opinion). It first places great
emphasis on the word “theft” in the ITPEA’s title. Apparently
the majority believes that Villanueva-Sotelo’s conduct does not
constitute aggravated identity theft because his “accidental
misappropriation,” Maj. Op. at 22, of another’s identification
number—the “accident,” I assume, relating to his ignorance of
the fact that the identification he knows to be false is assigned to
another person—would not constitute “theft.” See Maj. Op. at
16 (“As th[e] title demonstrates, the statute concerns ‘theft,’ i.e.,
‘the felonious taking and removing of personal property with
intent to deprive the rightful owner of it.’ WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 2369 (1993) (emphasis
added); see also BLACK’S LAW DICTIONARY 1516 (8th ed. 2004)
(‘The felonious taking and removing of another’s personal
property with the intent of depriving the true owner of it.’)”).
According to the majority, the fact that the title uses the word
“theft” shows that the Congress intended “to single out
thieves—in the traditional sense of the word.” Id. But
determining the mens rea required to commit a federal offense
does not necessarily entail finding a “common-law” match.
McCreary v. Offner, 172 F.3d 76, 82–83 (D.C. Cir. 1999) (noting
other circuits’ differing interpretations of statute manifest statute is
ambiguous).
6
Instead it involves the “ ‘construction of the statute and . . .
inference of the intent of Congress.’ ” Staples v. United States,
511 U.S. 600, 605 (1994) (quoting United States v. Balint, 258
U.S. 250, 253 (1922)) (ellipsis in original); see also Liparota,
471 U.S. 419, 424 (1985) (“The definition of the elements of a
criminal offense is entrusted to the legislature, particularly in the
case of federal crimes, which are solely creatures of statute.”
(citing United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812)).
Here the Congress has made clear—in discussing the same title
the majority reads as limited to common-law theft—that identity
“theft” is a much broader offense than the majority prefers. The
House Judiciary Committee Report accompanying the ITPEA
explains that “the terms ‘identity theft’ and ‘identity fraud’ refer
to all types of crimes in which someone wrongfully obtains and
uses another person’s personal data in some way that involves
fraud or deception, typically for economic or other gain,
including immigration benefits.” H.R. Rep. No. 108–528, at 4
(2004) (emphases added) (House Report); see also id. at 25
(statement of Rep. Coble) (“Identity theft and identity fraud are
terms used to refer to all types of crimes in which an individual’s
personal or financial data is misused, typically for economic
gain or to facilitate another criminal activity.” (emphasis
added)). The Congress’s synonymizing “identity theft” and
“identity fraud”—followed by a definition that includes “all
types” of crime “that involve[] fraud or deception”—could not
make clearer that identity “theft” is meant to be read
generically.7
7
Even assuming arguendo that we were required to harmonize
aggravated identity theft with common-law theft, could not the
majority’s view be inconsistent with the common law? See Maj. Op.
at 16 (defining “theft” as “ ‘the felonious taking and removing of
personal property with intent to deprive the rightful owner of it’ ”)
(emphasis added) (internal quotations omitted). In the majority’s
view, a defendant could be guilty of aggravated identity theft despite
7
The majority dismisses the House Report’s discussion of
the breadth of “identity theft” by positing that the Congress did
not consider “imagin[ing] a string of random numbers” to be a
“wrongful[]” way of possessing and/or using another person’s
“means of identification.” See Maj. Op. at 18 (emphasis added).
To support this notion, the majority points to a section of the
House Report that includes several examples of techniques
commonly used in identity theft (e.g., “ ‘dumpster diving,’ ”
“ ‘hack[ing] into computers,’ ” and “ ‘steal[ing] paperwork
likely to contain personal information,’ ” id. (quoting H.R. Rep.
No. 108-528, at 4–5)) and lists “a string of cases in which
convicted identity thieves escaped with relatively light
sentences, all of which involved defendants who, unlike
Villanueva-Sotelo, knew the identification they used belonged
to another.” Id. Finally, the majority highlights two statements
from the floor debate to the same effect. Id. at 18 (quoting 150
Cong. Rec. H4809 (daily ed. June 23, 2004) (statement of Rep
Sensenbrenner) (noting that “identity thieves” “sometimes
[steal] hundreds or even thousands of identities”); id. at H4810
not having “take[en]” or “remov[ed]” another’s “personal property”
so long as he knows the false identification belongs to another. Nor
does the identity thief “deprive” the owner of the latter’s means of
identification—if anything, he “shares” the owner’s identity.
Moreover, depending on the context, “theft” often has a broader
meaning than the common-law definition. See, e.g., Montejo, 353 F.
Supp. 2d at 654 (“While ‘theft’ is a popular term often identified with
‘larceny,’ the word ‘theft’ [can also be] an umbrella term which
includes other forms of wrongful taking.” (quoting McLaughlin v. City
of Canton, Miss., 945 F. Supp. 954, 970 n.18 (S.D. Miss. 1995)));
WEBSTER’S THIRD NEW WORLD DICTIONARY 2369 (including, in
addition to the common-law definition of “theft”—which the majority
cites—,“taking of property unlawfully”); BLACK’S LAW DICTIONARY
1486 (7th ed. 1999) (noting that theft, in addition to its common-law
definition, can also mean “[b]roadly, any act or instance of stealing.”).
8
(statement of Rep. Carter) (noting case wherein “Texas driver’s
license bureau clerk pleaded guilty to selling ID cards to illegal
immigrants using stolen information from immigration
papers”)). To make the strongest argument for the enactment of
the ITPEA, however, the drafters of the House Report
understandably highlighted the most notorious cases in which
defendants had received “light” punishment under the then-
existing law. That a crime like Villanueva-Sotelo’s—i.e., the
knowing use of an false identification without also knowing the
false identification belongs to another person—did not make the
“worst case” list does not mean that Villanueva-Sotelo’s conduct
is not covered by section 1028A(a)(1).8
Indeed, I read the House Report to expressly manifest that
the Congress did consider Villanueva-Sotelo’s conduct covered.
A primary purpose of the statute was to increase the punishment
for a defendant who “wrongfully obtains and uses another
person’s personal data,” H.R. Rep. No 108-528 at 4 (emphasis
added), so that the punishment more closely fits the harm the
crime causes its victim.9 In concluding that the examples of
8
Indeed, the House Report fails to mention other common forms
of identity theft, e.g., a parent misappropriating a child’s identity, see
e.g., John Leland, Identity Thief Is Often Found in Family Photo, N.Y.
TIMES, Nov. 13, 2006, at A1 (describing parent-child identity fraud as
commonplace).
9
See 150 Cong. Rec. H4811 (statement of Rep. Schiff) (‘A victim
of identity theft usually spends a year and a half working to restore his
or her identity and good name . . . . The current sentencing structure
and practice is flawed because it does not reflect the impact on the
victim, in addition to the impact and loss to the financial institution.”).
The Congress’s central concern with the damage caused by the
wrongful use of another person’s identity rings throughout the
legislative history. See, e.g., H.R. Rep. No. 108–528, at 4 (“[T]he loss
to businesses and financial institutions from identity theft [is
estimated] to be $47.6 billion. The costs to individual consumers are
9
“identity theft” included in the House Report exhaustively
describe the types of “wrongful” behavior the Congress intended
to sanction, the majority has lost sight of the Congress’s primary
objective—stopping the nation-wide identity theft tidal wave by
upping the ante for the thief. It is preposterous to think the same
Congress that so plainly and firmly intended to increase the
penalty—“a mandatory consecutive penalty enhancement of 2
estimated to be approximately $5.0 billion.”); id. at 25 (statement of
Rep. Coble) (“In 2002, the FTC received 161,819 victim complaints
of compromised personal information . . . . [These] victims have a
difficult time consuming [sic] an expensive task of repairing a
damaged credit history as well as their respective reputations.”); id. at
35 (statement of Rep. Scott) (“[T]he FTC reports [consumer identity
theft] bilked almost 30 million Americans out of approximately $50
billion over the last 5 years, with about $5 billion of that
out-of-pocket, unrecovered losses to consumers.”); id. at 44 (“Identity
theft victims now spend an average of 600 hours—often over a period
of years—recovering from the crime. Being a victim costs an average
of $1,400 in out-of-pocket expenses . . . .”); id. at 51 (statement of
Rep. Schiff) (noting that purpose of ITPEA is “to protect the good
credit and reputation of hard-working Americans”).
The Congress also enacted the ITPEA in order to increase the
penalty for a terrorist who possesses a false means of identification.
See 18 U.S.C. § 1028A(a)(2) (mandating five-year consecutive prison
term for “knowingly transfer[ing], possess[ing] or us[ing], without
lawful authority, a means of identification of another person or a false
identification document” “during and in relation to any felony
violation enumerated in section 2332b(g)(5)(B)” (i.e., a terrorism
offense)); H.R. Rep. No 108–528, at 3 (“The bill also amends current
law to impose a higher maximum penalty for identity theft used to
facilitate acts of terrorism.”); id. at 4 (“[A]l Qaida and other terrorist
organizations increasingly turn to stolen identities to hide themselves
from law enforcement.”). Significantly, the five-year consecutive
sentence is to be imposed whether or not the false identification is that
“of another person,” manifesting that scienter “of another person” is
not required.
10
years”—if the defendant possesses another’s means of
identification “in order to commit a serious federal predicate
offense,” id. at 10, would then so limit its imposition as to
require the Government to prove that the defendant knows he
wrongfully possesses the identity “of another person.”10 In this
respect, the majority ignores reality in “doubt[ing] that [its]
interpretation of section 1028A(a)(1) will saddle the government
with a burden it cannot meet.” Maj. Op. at 28. Except for the
forger himself, proving beyond a reasonable doubt that each of
the thousands, if not millions, of holders of false green cards
knows that the false means of identification he possesses is that
“of another person” would “place[] on the prosecution [an] often
impossible burden.” United States v. Chin, 981 F.2d 1275, 1280
(D.C. Cir. 1992), cert. denied, 508 U.S. 923 (1993). The
legislative history persuades me that the Congress considered
the unauthorized use of another person’s means of identification
to be “wrongful” and therefore covered by section 1028A(a)(1)
whether done by “dumpster diving,” “hacking into a computer
system” or “imagining a string of numbers.”11
10
Must the government also prove the defendant knows “another
person[’s]” identity? I assume even the majority would not offer that
reading.
11
I note just one example of a result that can fit within the
majority’s seemingly benign “accidental misappropriation” label, Maj.
Op. at 22:
One woman’s Social Security identification number has
been used by at least 81 people in 17 states. . . . [I]nformation
gleaned from criminal investigations, tax documents and other
sources suggest most of the users were probably illegal
immigrants trying to get work.
Audra Schmierer, a 33-year-old housewife in this affluent
San Francisco suburb, realized she had a problem in February
2005, when she got a statement from the IRS saying she owed
11
$15,813 in back taxes—even though she had not worked since
her son was born in 2000. Perhaps even more surprising, the
taxes were due from jobs in Texas.
Schmierer has since found that her Social Security
number has been used by people from Florida to Washington
state, at construction sites, fast-food restaurants and even
major high-tech companies. Some opened bank accounts
using the number.
***
Under current law, if the Social Security Administration
or the Internal Revenue Service find multiple people using the
same Social Security number, the agencies send letters
informing employers of possible errors.
The IRS can fine employers $50 for each inaccurate
number filed, a punishment that companies often dismiss as
just another cost of doing business.
“Sending letters is the limit to what can be done,” Social
Security spokesman Lowell Kepke said. “We expect that will
be able to fix any records that are incorrect.”
The information on mismatched names is seldom shared
with law enforcement agencies.
***
Schmierer has done a little investigating of her own,
combing through tax bills sent to her for names and locations
of employers who hired people using her number.
She has also obtained more than 200 W-2 and 1099 tax
forms that contained her Social Security number but different
names.
***
Schmierer filed a police report after learning one man had
used her information in 2003 at janitorial and landscaping
12
companies near Haltom City, Texas.
Investigators found the man, who told officers he had
bought a fake Social Security card at a flea market, according
to a police report. He was not arrested.
***
What started as a hassle turned into a major headache
earlier this year when she sought work through a temporary
agency that learned her Social Security number had been used
by a woman in Texas two years earlier. The agency could not
hire Schmierer for more than a month while the situation was
clarified.
“How do you prove that you are you?” Schmierer said.
“It’s like you are guilty until proven innocent.”
While returning from a trip to Mexico with her husband
last year, Schmierer was detained for four hours in a Dallas
airport by immigration officials. The reason: a woman using
her Social Security number was wanted for a felony.
***
Schmierer’s number became so compromised that Social
Security officials finally took a rare step used only in extreme
cases: They gave her a new one.
Peter Prengaman, One Social Security Number, 81 People, CBS
NEWS, June 17, 2006, available at http://www.cbsnews.com/
stories/2006/06/17/national/main1726397.shtml?source=RSS&attr=
HOME_1726397.
Whether the people who had these cards had obtained Schmeier’s
social security number through “dumpster diving,” “hacking into a
computer system” or simply “imagining a string of numbers,” the
harm Schmierer suffers is the same. Can the Congress really have
intended to prevent the repetition of nightmares like Schmierer’s by
punishing more severely only that thief (from among the 81) who
knows that the purloined social security number is a real one?
13
But resort to legislative history and congressional intent is
not even necessary if the meaning of the language is discernible
from a construction of the language under review together with
language in pari materia. We have often held that if the
Congress had intended language in legislation to have a certain
disputed meaning, “it would have said so more clearly.”
Bluewater Network v. E.P.A., 370 F.3d 1, 18 (D.C. Cir. 2004);
see also Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995);
Consumer Fed’n of Am. v. U.S. Dep’t. of Health & Human
Servs, 83 F.3d 1497, 1503 n.6 (D.C. Cir. 1996) (“[H]ad
Congress [so] intended . . ., it presumably would have drafted
the statute differently . . . .”). Here the Congress “could have
drafted the statute to prohibit the knowing transfer, possession,
or use, without lawful authority, of the means of identification
‘known to belong to another actual person.’ ” United States v.
Hurtado, 508 F.3d 603, 609 (11th Cir. 2007). This is precisely
what the Congress did in 18 U.S.C. § 1546(a)—the predicate
offense Villanueva-Sotelo pleaded guilty to in Count 2,
triggering the enhanced penalty of section 1028A(a)(1). Section
1546(a) makes it illegal to:
utter[], use[], attempt[] to use, possess[], obtain[],
accept[], or receive[] any [forged, counterfeited, altered
or falsely made] . . . document prescribed by statute or
regulation . . . as evidence of authorized stay or
employment in the United States, knowing it to be
forged, counterfeited, altered, or falsely made, or to
have been procured by means of any false claim or
The majority points out the obvious fact that this news report post-
dates by some two years the enactment of the ITPEA. Maj. Op. at 28.
I highlight it, of course, not as legislative history but as an example of
what the majority’s oxymoronic “accidental misappropriation”
interpretation will work.
14
statement, or to have been otherwise procured by fraud
or unlawfully obtained.
18 U.S.C. § 1546(a) (emphasis added). By this language the
Congress plainly intended that Villanueva-Sotelo know that the
Card he presented to the MPD officer was forged, counterfeited,
altered or falsely made. The fact that the Congress chose not to
use the same language in section 1028A(a)(1)—a provision
whose enhancement expressly incorporates 18 U.S.C. § 1546(a)
(with its differing language) and which therefore must be given
a construction in pari materia12—persuades me that it did not
12
“Statutory provisions in pari materia normally are construed
together to discern their meaning.” Motion Picture Ass’n of Am., Inc.
v. FCC, 309 F.3d 796, 801 (D.C. Cir. 2002) (citing Erlenbaugh v.
United States, 409 U.S. 239, 244 (1972)).
To be in pari materia, statutes need not have been
enacted simultaneously or refer to one another. . . .
However, the rule that statutes in pari materia should
be construed together has the greatest probative force
. . . or in the case where the later of two or more
statutes relating to the same subject matter refers to
the earlier. In these situations the probability that
acts relating to the same subject matter were based on
the same policy is very high.
2B SUTHERLAND STATUTORY CONSTRUCTION § 51:3 (6th ed. 2000)
(emphases added) (footnotes omitted); see, e.g., Estate of Hendrick v.
Comm’n, 918 F.2d 1263, 1266 (6th Cir. 1990) (tax statutes
“ ‘specifically cross referenc[ing]’ ” each other construed in pari
materia) (quoting Estate of Leder v. Comm’n, 893 F.2d 237, 241 (10th
Cir. 1989)); United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir.
1995) (“explicit cross reference” supported construing U.S.S.G.
§ 5C1.2 and Fed. R. Crim. P. 32(c) in pari materia); Mimkon v. Ford,
332 A.2d 199, 203 (N.J. 1975) (“[T]he rule most obviously
applies . . . . where [the statutes in question] make specific reference
to one another . . . .” (citing 2A SUTHERLAND STATUTORY
15
intend to require Villanueva-Sotelo to know that the Card he
presented was that “of another person” in order to violate section
1028A(a)(1). If it had so intended, it would have phrased
section 1028A(a)(1) as explicitly as it did section 1546(a); for
example, “a means of identification known to belong to another
person.”13 The fact that Villanueva-Sotelo is, in my view, guilty
of both Count 2 (which he admits) and Count 3 (of which he
professes his innocence) based on the same mens rea does not
mean the charges are duplicative. Villanueva-Sotelo can
commit the predicate offense set out in section 1546(a) whether
or not the false means of identification belongs to another; if it
does belong to another, that is, if it fits the description set out in
section 1028A(a)(1), Villanueva-Sotelo has also committed the
“aggravated” offense and thereby added a mandatory two-years’
consecutive imprisonment to his punishment.
Moreover, a comparison of sections 1028A(a)(1) and
1028A(a)(2) also demonstrates that the Congress did not intend
“knowingly” to modify “of another person.” Subsection (a)(2)
provides for a five-year penalty enhancement for anyone who
“during and in relation to” a terrorist act (per 18 U.S.C.
§ 2332b(g)(5)(B)):
CONSTRUCTION § 51.03 (Sands ed. 1973)); Keith v. Lockhart, 88 S.E.
640, 642 (N.C. 1916) (construing two statutes in pari materia when
“the later statute . . . in express terms refers to . . . the former).
Because Section 1028A(c)(7) expressly incorporates by reference
section 1546(a) and because both sections, as well as section
1028A(a)(1), relate to the same subject matter (possession of a false
means of identification), they are to be construed in pari materia.
13
See, e.g., 18 U.S.C. § 922(q)(2)(A) (“It shall be unlawful for any
individual knowingly to possess a firearm that has moved in or that
otherwise affects interstate or foreign commerce at a place that the
individual knows, or has reasonable cause to believe, is a school
zone.”) (emphases added).
16
knowingly transfers, possesses, or uses, without lawful
authority, [1] a means of identification of another
person or [2] a false identification document . . . .
18 U.S.C. § 1028A(a)(2) (emphasis added). The second prong
of this subsection demonstrates the Congress’s intent that a
terrorist’s knowledge that he possesses a “false” identification
document supplies all the culpability necessary to commit
aggravated identity theft. Thus, when subsection (a)(1) uses the
identical phrase in speaking of one who “knowingly . . .
possesses . . ., without lawful authority, a means of identification
of another person,” the scienter requirement is satisfied if the
defendant knows that he possesses “a means of identification”
“without lawful authority.” The phrase “of another person” is,
in effect, jurisdictional language describing the “means of
identification” that triggers an additional penalty.14
Both the majority and I spill a lot of ink on dueling canons
of statutory construction. See supra pp. 13–16; Maj. Op at
4–10, 25–28. Perhaps our exchange illustrates little more than
that, in construing statutes, courts have a variety of interpretive
aids to choose from. The first principle of statutory
construction, however, is to apply common sense in the reading
of language. See United States v. Howell, 78 U.S. 432, 436
(1870) (“[O]ne of the first canons of construction teaches us to
14
Construing 1028A(a)(1) and 1028A(a)(2) together also reveals
that the majority’s emphasis on the word “theft” in the ITPEA’s title
is misplaced. Under the second prong of section 1028A(a)(2) a
defendant can be convicted of aggravated identity theft despite the fact
that he has not misappropriated—accidently or otherwise—another
person’s identity. That the knowing possession of “a false
identification document” suffices to violate section 1028A(a)(2)
makes clear that the Congress intended identity “theft” to be construed
broadly—in some instances not even requiring the “traditional” theft
the majority describes.
17
avoid if possible [a result] which is at war with the common
sense . . . .”); Roschen v. Ward, 279 U.S. 337, 339 (1929)
(“[T]here is no canon against using common sense in construing
laws as saying what they obviously mean.”); Nat’l Rifle Ass’n of
Am., Inc. v. Reno, 216 F.3d 122, 127 (D.C. Cir. 2000). Common
sense tells me that the Congress, seeking to stop a type of crime
that is increasing on an almost daily basis, enhanced the penalty
to effect its purpose. And it is anything but common sense to
conclude that the same Congress intended to gut that enhanced
penalty, as the majority’s reading does.
Finally, I believe the majority misinterprets Supreme Court
precedent. That precedent teaches that “[t]he presumption in
favor of scienter requires a court to read into a statute only that
mens rea which is necessary to separate wrongful conduct from
‘otherwise innocent conduct.’ ” Carter v. United States, 530
U.S. 255, 256–57 (2000) (quoting United States v. X-Citement
Video, Inc., 513 U.S. 64, 72 (1994)) (first emphasis added). For
example, in Liparota v. United States, 471 U.S. 419 (1985), the
Supreme Court interpreted the mens rea requirement of a statute
which prohibited “knowingly us[ing], transfer[ing], acquir[ing],
alter[ing], or possess[ing] [food] coupons,” 7 U.S.C.
§ 2024(b)(1), “in any manner not authorized by statute or
regulations.” Liparota, 471 U.S. at 426. At issue was whether
the “knowledge” requirement applied to each element of the
offense—i.e., whether the defendant was required to know that
he was using food stamps “in a manner not authorized by statute
or regulations.” Liparota, 471 U.S. at 426. The Court found the
language of the food stamp statute ambiguous and noted that the
legislative history did not clarify the scope of the mens rea
requirement. See id. at 424–25. The Court ultimately held that
the “knowledge” requirement applied to each element of the
offense, emphasizing its desire to avoid “criminaliz[ing] a broad
18
range of apparently innocent conduct.”15 Id. at 426.
In United States v. X-Citement Video, Inc., 513 U.S. 64
(1994), the Supreme Court expressed the same concern in
interpreting a statute which criminalized “knowingly”
transporting, shipping, receiving, distributing or reproducing
sexually explicit material involving minors.16 The Court
15
The Court explained:
[The statute] declares it criminal to use, transfer, acquire,
alter, or possess food stamps in any manner not authorized by
statute or regulations. The statute provides further that
“[c]oupons issued to eligible households shall be used by
them only to purchase food in retail food stores which have
been approved for participation in the food stamp program at
prices prevailing in such stores.” 7 U.S.C. § 2016(b) . . .
This seems to be the only authorized use. A strict reading of
the statute with no knowledge-of-illegality requirement would
thus render criminal a food stamp recipient who, for example,
used stamps to purchase food from a store that, unknown to
him, charged higher than normal prices to food stamp
program participants. Such a reading would also render
criminal a nonrecipient of food stamps who “possessed”
stamps because he was mistakenly sent them through the mail
due to administrative error, “altered” them by tearing them up,
and “transferred” them by throwing them away. Of course,
Congress could have intended that this broad range of conduct
be made illegal, perhaps with the understanding that
prosecutors would exercise their discretion to avoid such
harsh results. However, given the paucity of material
suggesting that Congress did so intend, we are reluctant to
adopt such a sweeping interpretation.
Liparota, 471 U.S. at 426–27 (emphases and alterations in original)
(citations and footnote omitted).
16
The statute allowed criminal charges to be brought against any
person who “knowingly transports or ships in interstate or foreign
19
believed that under the “most grammatical reading of the
statute,” id. at 70, “knowingly” would modify only the
immediately surrounding verbs (i.e., “transports or ships”). This
construction, however, would allow conviction even if the
defendant was not aware that the materials were sexually
explicit or that the actors were minors. Id. at 68. The Court
chose not to give the “most natural,” id., reading of the statute,
instead extending the mens rea requirement to each element of
the offense. It explained that “the presumption in favor of a
scienter requirement should apply to each of the statutory
elements that criminalize otherwise innocent conduct.” Id. at 72
(discussing Morissette v. United States, 342 U.S. 246 (1952) and
Staples v. United States, 511 U.S. 600 (1994)). Otherwise:
a retail druggist who returns an uninspected roll of
developed film to a customer “knowingly distributes”
a visual depiction and would be criminally liable if it
were later discovered that the visual depiction
contained images of children engaged in sexually
explicit conduct. Or, a new resident of an apartment
might receive mail for the prior resident and store the
mail unopened. If the prior tenant had requested
delivery of [explicit] materials . . . his residential
successor could be prosecuted for “knowing receipt” of
such materials. Similarly, a Federal Express courier
who delivers a box in which the shipper has declared
the contents to be “film” “knowingly transports” such
film. We do not assume that Congress, in passing
laws, intended such results.
Id. at 69–70. The Court characterized this result as “not merely
commerce . . . any visual depiction, if . . . the producing of such visual
depiction involves the use of a minor engaging in sexually explicit
conduct.” 18 U.S.C. § 2252(a).
20
odd, but positively absurd.” Id. at 69.17
There is no similar danger that innocent or unwitting
conduct might be penalized under section 1028A(a)(1) because
a conviction can be had only if the defendant has used another
person’s means of identification during or in relation to one of
17
Until today, our decisions have been to the same effect. For
example, in United States v. Chin, 981 F.2d 1275 (D.C. Cir. 1992),
cert. denied, 508 U.S. 923 (1993), we held that under 21 U.S.C.
§ 861(a)(2)—which prohibits anyone who illegally distributes a
controlled substance from “knowingly and intentionally . . .
employ[ing] . . . a person under eighteen years of age to assist”—the
Government need not prove the defendant knew his accomplice was
under eighteen. We noted that “this is not an instance in which a
broad interpretation of a statute threatens to criminalize ‘apparently
innocent conduct.’ ” Id. at 1280 (quoting Liparota, 471 U.S. at 426).
We explained that “[a] conviction under 21 U.S.C. § 861(a)(2) can be
had only upon proof that the person knowingly and intentionally” used
another person to distribute controlled substances. Id. Because the
distribution of narcotics is hardly an innocent act, we held that the
Government was not required to prove that the defendant knew his
accomplice was under eighteen. Cf. United States v. Williams, 922
F.2d 737, 738–39 (11th Cir.) (interpreting same subsection and
concluding Government need not prove defendant knew minor’s age),
cert. denied, 502 U.S. 892 (1991); United States v. Valencia-Roldan,
893 F.2d 1080, 1083 (9th Cir.) (same), cert. denied, 495 U.S. 935
(1990); United States v. Carter, 854 F.2d 1102, 1108–09 (8th Cir.
1988) (same). In United States v. Holland, 810 F.2d 1215, 1223–24
(D.C. Cir.), cert. denied, 481 U.S. 1057 (1987); we held that under 21
U.S.C. § 845a (recodified as 21 U.S.C. § 860)—which prohibited the
sale of controlled substances within 1000 feet of a elementary or
secondary school—the Government need not prove that the defendant
knew that a school was within 1000 feet because such reading was not
necessary to avoid “criminaliz[ing] a broad range of apparently
innocent conduct.’ ” Id. at 1223.
21
the felony offenses enumerated in section 1028A(c).18 Section
1028A(a)(1) functions as any “other federal law[] which
provide[s] enhanced penalties or allow[s] conviction for
obviously antisocial conduct upon proof of a fact of which
defendant need not be aware.’ ” United States v. Montejo, 442
F.3d 213, 216–17 (4th Cir. 2006) (quoting United States v.
Cook, 76 F.3d 596, 601 (4th Cir. 1996)); see, e.g., United States
v. Feola, 420 U.S. 671, 684 (1975) (upholding penalty
enhancement under 18 U.S.C. § 111 for any person who assaults
federal officer whether or not he knows victim is, in fact, federal
officer);19 see also United States v. LaPorta, 46 F.3d 152, 158
(2d Cir. 1994) (defendant not required to know torched building
was government property because “[a]rson is hardly otherwise
innocent conduct” (quotation omitted)); United States v. Falu,
776 F.2d 46, 50 (2d Cir. 1985) (Drug Free School Zone Act:
“This construction . . . does not criminalize otherwise innocent
activity”); United States v. Hamilton, 456 F.2d 171, 172–73 (3d
Cir.) (in Mann Act prosecution, defendant not required to know
18
As noted earlier, Villanueva-Sotelo admitted knowing the Card
he possessed was false and that his possession of the Card was illegal,
see Factual Proffer 3, unlike the Liparota defendant who professed his
ignorance of any unlawful conduct.
19
The Feola Court reasoned that:
[its] interpretation [of § 111] poses no risk of unfairness to
defendants. It is no snare for the unsuspecting. Although the
perpetrator . . . may be surprised to find that his intended
victim is a federal officer in civilian apparel, he nonetheless
knows from the very outset that his planned course of conduct
is wrongful. The situation is not one where legitimate
conduct becomes unlawful solely because of the identity of
the individual [victim]. . . . [T]he offender takes his victim as
he finds him.
Feola, 420 U.S. at 685.
22
minor transported across state line for immoral purpose was
under eighteen; “knowingly” held to refer only to act of
transportation), cert. denied, 406 U.S. 947 (1972). In these
cases—where the defendant can “hardly be surprised to learn
that [his behavior] is not an innocent act,” see United States v.
Freed, 401 U.S. 601, 609 (1971)—the courts have made it the
defendant’s duty to “ ‘ascertain[,] at his peril whether [his
actions] come[] within the inhibition of the statute.’ ” Id.
(quoting United States v. Balint, 258 U.S. 250, 253–54 (1922)).
It is well settled that we must “presum[e] that Congress was
aware of [the Court’s] . . . judicial interpretations,” Keen Corp.
v. United States, 508 U.S. 200, 212 (1993), including “[t]he
presumption in favor of scienter [that] generally requires a court
to read into a statute only that mens rea which is necessary to
separate wrongful conduct from ‘otherwise innocent conduct.’
” Carter, 530 U.S. at 257 (quoting X-Citement Video, 513 U.S.
at 72) (first emphasis added). Applying the presumption here,
I cannot help but conclude that the Congress intended the
violation of section 1028A(a)(1) to hinge on the defendant’s
knowing use of a means of identification known to be false
without his also having to know the false identification is that
“of another person.”
In sum, I would hold, as has every other circuit that has
construed this language, see United States v. Montejo, 442 F.3d
213 (4th Cir.), cert. denied, 127 S.Ct. 366 (2006); United States
v. Hines, 472 F.3d 1038 (8th Cir.), cert. denied, 128 S.Ct. 235
(2007); United States v. Hurtado, 508 F.3d 603 (11th Cir. 2007),
that section 1028A(a)(1) of the ITPEA does not require the
Government to prove that the defendant know that the false
“means of identification” he possesses is that “of another
person.” 18 U.S.C. § 1028A(a)(1).20 Accordingly, I would
20
I believe the rule of lenity is inapplicable here, even if only as an
alternative holding. See Maj. Op. at 22–23. See Chapman v. United
23
reverse the district court’s dismissal of Count 3, charging
Villanueva-Sotelo with a violation of 18 U.S.C. § 1028A(a)(1).
States, 500 U.S. 453, 463 (1991) (rule of lenity “is not applicable
unless there is a ‘grievous ambiguity or uncertainty in the language
and structure of the Act,’ . . . such that even after a court has ‘seize[d]
everything from which aid can be derived,’ it is still ‘left with an
ambiguous statute.’ ”) (quoting Huddleston v. United States, 415 U.S.
814, 831 (1974); United States v. Bass, 404 U.S. 336, 347 (1971)). To
the extent the relevant language is ambiguous, it is far from
“grievously” so; legislative history and statutory language in pari
materia clear it up nicely.