FILED
NOT FOR PUBLICATION FEB 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10126
Plaintiff - Appellant, D. C. No. CR-06-00080
v.
HAENG HWA LEE, MEMORANDUM *
Defendant - Appellee.
Appeal from the United States District Court
for the District of Guam
Dean D. Pregerson, Designated District Judge, Presiding
Argued and Submitted February 11, 2010
Honolulu, Hawaii
Before: FARRIS, D.W. NELSON, and BEA, Circuit Judges.
Appellee Haeng Hwa Lee (“Lee”), a Korean national who originally entered
Guam under a tourist visa waiver program, was indicted for Fraud in Connection
with an Identification Document, in violation of 18 U.S.C. §§ 2 and 1028(a)(1),
and Conspiracy, in violation of 18 U.S.C. §§ 2 and 371, after obtaining a Guam
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
driver’s license using a fictitious Individual Taxpayer Identification Number
(“ITIN”). At Lee’s pretrial conference, the district court dismissed the indictment
against Lee, holding that a government agent only produces an identification
document “without lawful authority” under § 1028(a)(1) if that agent was “paid
off, so that [the agent does] not requir[e] the normal documents or know[s] that the
normal documents are forged and . . . issue[s] a driver’s license anyway.” The
government timely appealed. We have jurisdiction under 28 U.S.C. § 1291, and
we reverse.
“We review de novo a district court’s decision to dismiss an indictment
based on an interpretation of a federal statute.” United States v. Marks, 379 F.3d
1114, 1116 (9th Cir. 2004).
18 U.S.C. § 2(b) provides that a person who “willfully causes an act to be
done which if directly performed by him or another would be an offense against
the United States, is punishable as a principal.” In other words, a principal is guilty
of an offense if she used “an innocent pawn to cause an act to be done which, if
performed by the principal, would be unlawful.” United States v. Valencia, 492
F.2d 1071, 1074 (9th Cir. 1974). The district court, without citing precedent,
concluded that § 2(b) does not apply to prosecutions for identification fraud under
§ 1028(a)(1).
2
This conclusion was in error. As Lee concedes, it is irrelevant whether the
government agent who actually produced Lee’s license intended to commit
identification fraud or was merely an innocent pawn. See United States v.
Rashwan, 328 F.3d 160, 165 (4th Cir. 2003) (“[The defendant] aided and abetted
the production of false identification documents by providing false information to
the DMV with the specific intent that the agency would then produce a false
identification document for him. Because [the defendant] specifically intended for
the DMV to issue a fraudulent identification card and license, it does not matter
whether the clerk who actually produced the license also had any intent to commit
the crime.”).
Lee argues that this court should affirm the district court on the alternate
ground that the Guam Department of Revenue and Taxation does not have the
lawful authority to require that driver’s license applicants present an ITIN or Social
Security Number. This argument fails. Lee is precluded from challenging the
legality of the underlying requirement that she present an ITIN in order to receive a
driver’s license. See, e.g., Dennis v. United States, 384 U.S. 855, 866 (1966) (“It is
no defense to a charge based upon [fraud] that the statutory scheme sought to be
evaded is somehow defective.”). We therefore reverse the district court’s dismissal
of the indictment against Lee and remand for further proceedings.
REVERSED and REMANDED.
3