United States v. Godin

United States Court of Appeals
For the First Circuit

No. 07-2332

UNITED STATES,

Appellee,

v.

CORI A. GODIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella, Circuit Judge,
and Tashima,* Senior Circuit Judge.

Eric A. Vos, Assistant Federal Defender, with whom David
Beneman, Federal Defender, was on brief for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.

July 18, 2008

*
Of the Ninth Circuit, sitting by designation.
 TASHIMA, Senior Circuit Judge. Defendant-Appellant Cori

A. Godin challenges her conviction for aggravated identity theft

under 18 U.S.C. § 1028A(a)(1). The statute adds a mandatory two-

year term of imprisonment to that otherwise provided for certain

enumerated felonies if, “during and in relation to” the felony, the

perpetrator “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 this court is how far

the “knowingly” mens rea requirement extends. Must the defendant

know that the means of identification belongs to another person?

We conclude that the statute is ambiguous and that the legislative

history does not clearly reveal congressional intent. Applying the

rule of lenity, as we must, we hold that the “knowingly” mens rea

requirement extends to “of another person.” In other words, to

obtain a conviction under § 1028A(a)(1), the government must prove

that the defendant knew that the means of identification

transferred, possessed, or used during the commission of an

enumerated felony belonged to another person. The government did

not do so here. Accordingly, we reverse Godin’s conviction.1

I. Background

In 2006, Godin defrauded eight banks and credit unions

(collectively, the “banks”). She opened accounts using fabricated

social security numbers, closed some accounts, and then deposited

1
We have jurisdiction pursuant to 28 U.S.C. § 1291.

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checks drawn on the closed accounts into the still open accounts.

Godin then withdrew funds from the falsely inflated accounts. In

this manner, Godin defrauded the banks of approximately $40,000.

Godin fabricated seven different social security numbers

by altering the fourth and fifth digits of her own social security

number. Godin’s social security number is 004-82-XXXX.2 Of the

seven fabricated numbers, only one, number 004-44-XXXX, belonged to

another person. Godin opened an account at Bank of America with

the fabricated 004-44-XXXX number but provided the bank with her

correct name, address, date of birth, driver’s license number, and

telephone number.

The government charged Godin in a seventeen-count

indictment: six counts of bank fraud in violation of 18 U.S.C. §

1344, ten counts of social security fraud in violation of 42 U.S.C.

§ 408(a)(7)(B), and one count of aggravated identity theft in

violation of 18 U.S.C. § 1028A(a)(1). In the aggravated identity

theft count, Godin was charged with knowingly using social security

number 004-44-XXXX during and in relation to one of the bank fraud

counts (Count 4) and one of the social security fraud counts (Count

15).

Godin moved to dismiss Count 17, the aggravated identity

theft count, arguing that the government had to prove that she knew

2
We redact the last four digits of each social security
number for the sake of privacy.

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that the 004-44-XXXX social security number belonged to another

person. The District Court denied the motion to dismiss, but

declined to reach the mens rea issue. United States v. Godin

(Godin I), 476 F. Supp. 2d 1 (D. Me. 2007). Noting that what Godin

knew about the number remained a question of fact,3 the District

Court “decline[d] to make an abstract decision on an issue that

ultimately may not reflect the actual facts.” Id. at 3.

Thereafter, Godin pleaded guilty to the sixteen bank and

social security fraud counts. Godin proceeded to trial only on

Count 17, the aggravated identity theft count. At trial, Godin

stipulated that she committed bank and social security fraud and

that she knew that the social security numbers she used in relation

to those felonies were not her own.

The government called two witnesses. The first was

employed by Bank of America and testified that Godin used number

004-44-XXXX to open an account but that she gave the bank her

correct name, address, phone number, driver’s license number, and

date of birth. The government then called a Special Agent for the

Social Security Administration (“Agent”). The Agent testified that

by searching a secure and password-protected Social Security

Administration database, he determined that social security number

3
In opposing the motion to dismiss, the government argued
“that it [was] simply incredible for the Defendant to claim that
there was no way she could have known at least one of these numbers
. . . was assigned to another individual.” Godin I, 476 F. Supp.
2d at 3.

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004-44-XXXX was assigned to a man who resided in Maine.4 The Agent

also testified that he could not tell by looking at the number that

it belonged to another person because there are millions of

unassigned numbers. Godin did not dispute any of this evidence but

put her true social security number, 004-82-XXXX, into evidence.

After the government’s case in chief, Godin moved for a

judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29. She argued that the evidence was insufficient to

support a verdict because the government presented no evidence to

show that she knew the false number belonged to someone else. The

District Court denied the motion. The District Court gave two

reasons for its decision. First, the scienter issue remained

unresolved. Second, the District Court believed that the jury

could find that Godin knew the number belonged to someone else.

Both parties debated the scienter requirement at a jury

charge conference. While acknowledging that it was “a close

issue,” the District Court instructed the jury as follows:

To convict Cori Godin of this offense, the
government must prove each of the following elements
beyond a reasonable doubt:
First, Cori Godin committed bank fraud and / or
social security fraud felony violations. The parties
stipulate that she did so.
Second, during and in relation to one or both of
those other felony violations, Cori Godin knowingly used
a means of identification without lawful authority.
Third, that means of identification belonged to
another person.

4
The record does not reveal the individual’s name.

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 . . .
“Knowingly” means that the act was done voluntarily
and intentionally and not because of mistake or accident.
The government must prove that Cori Godin knew that she
did not have lawful authority to use the means of
identification in question. The government is not
required to prove that she knew the means of
identification actually belonged to another person.

United States v. Godin (Godin II), 489 F. Supp. 2d 118, 119-20 (D.

Me. 2007).

In explaining its decision, the District Court first

noted that the language of § 1028A(a)(1) was “not strongly

persuasive in either direction,” but permitted the District Court’s

reading. Id. at 120. Second, the weight of case law at that time

favored a narrow scienter requirement. Id. Third, “knowingly” had

to extend to “means of identification” because the statute requires

that the defendant know that the means of identification is

fraudulent. Id. Finally, the purpose of the statue, punishing

“identity theft,” supported stopping the scienter requirement at

“means of identification” and not extending it to “of another

person” because the person whose number Godin used “was a victim of

identity theft, whether Godin knew that she was stealing his

identity or not.” Id. at 121.

The jury returned a guilty verdict. Godin timely

appeals, contending that the court charged the jury in error and

that the evidence was insufficient to convict her of aggravated

identity theft under § 1028A(a)(1).

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 II. Scienter Requirement

The circuits are divided on the issue of whether the

“knowingly” scienter requirement in § 1028A(a)(1) extends to “of

another person.” The Fourth, Eighth, and Eleventh Circuits have

concluded that it does not. United States v. Mendoza-Gonzalez, 520

F.3d 912, 915 (8th Cir. 2008); United States v. Hurtado, 508 F.3d

603, 607 (11th Cir. 2007) cert. denied, ___ S. Ct. ___, 2008 WL

488011 (June 9, 2008); United States v. Montejo, 442 F.3d 213, 214

(4th Cir.), cert. denied, 127 S. Ct. 366 (2006). The D.C. Circuit

recently concluded, however, that it does. United States v.

Villanueva-Sotelo, 515 F.3d 1234, 1236 (D.C. Cir. 2008). We review

de novo “alleged jury instruction errors involving the

interpretation of the elements of a statutory offense.” United

States v. Soto-Beniquez, 356 F.3d 1, 44-45 (1st Cir. 2003).

Our interpretive task begins with the statute’s text.

United States v. Jimenez, 507 F.3d 13, 19 (1st Cir. 2007). We look

to the plain meaning of the words in “‘the broader context of the

statute as a whole.’” United States v. Roberson, 459 F.3d 39, 51

(1st Cir. 2006) (quoting Mullane v. Chambers, 333 F.3d 322, 330

(1st Cir. 2003)). If the meaning of the text is unambiguous our

task ends there as well. Id. If the statute is ambiguous, we look

beyond the text to the legislative history in order to determine

congressional intent. Gen. Motors Corp. v. Darling’s, 444 F.3d 98,

108 (1st Cir. 2006) (internal citations omitted). “A statute is

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ambiguous only if it admits of more than one reasonable

interpretation.” Id. (citing Thinking Machs. Corp. v. Mellon Fin.

Servs. Corp. #1 (In re Thinking Machs. Corp.), 67 F.3d 1021, 1025

(1st Cir. 1995)).

Section 1028A(a)(1) provides, in relevant part,

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).5 “Knowingly,” as an adverb, modifies the

verbs “transfers, possesses, or uses.” The prepositional phrase

“without lawful authority” is an adverb phrase that also modifies

the verbs. “Means” is the direct object of the verbs, and the

prepositional phrase “of identification” is an adjective phrase

that modifies the direct object. Finally, the prepositional phrase

“of another person” is an adjective phrase that modifies

“identification.” Together, “knowingly transfers, possesses, or

uses, without lawful authority, a means of identification of

another person” is a participial phrase describing the subject

“whoever.”

The government argues that “knowingly,” because it is an

adverb, modifies the verbs, and the Fourth, Eighth, and Eleventh

5
Among the felonies enumerated in § 1028A(c) are social
security fraud and bank fraud. 18 U.S.C. § 1028A(c)(4) & (5).
A social security number is a “means of identification.” Id.
§ 1028(d)(7)(A).

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Circuits agree. Mendoza-Gonzalez, 520 F.3d at 915; Hurtado, 508

F.3d at 609; Montejo, 442 F.3d at 215. In a purely grammatical

sense, “knowingly,” as an adverb, modifies only the verbs

“transfers, possesses, or uses.” In interpreting § 1028A, however,

we are not engaged in a purely grammatical exercise. In criminal

statutes, adverbs that are also mens rea requirements frequently

extend to non-verbs. See Villanueva-Sotelo, 515 F.3d at 1238

(explaining that the term “modify,” when used in statutory

interpretation, is better equated with the terms “‘apply,’

‘extend,’ or ‘attach.’”). Cases holding that “knowingly” extends

to words and phrases other than verbs are legion. See, e.g.,

United States v. Edgerton, 510 F.3d 54, 57 (1st Cir. 2007) (holding

that a conviction under 18 U.S.C. § 922(a)(6) requires proof that

a defendant knowingly made a false statement when purchasing a

firearm); United States v. Leahy, 473 F.3d 401, 408 (1st Cir. 2007)

(noting that 18 U.S.C. § 922(g), the felon-in-possession statute,

requires knowing possession of a firearm); United States v.

Gonsalves, 435 F.3d 64, 72 (1st Cir. 2006) (affirming that 18

U.S.C. § 1001, making false statements to the government, requires

that a defendant knowingly make a false statement); United States

v. Hussein, 351 F.3d 9, 14 (1st Cir. 2003) (noting that under 21

U.S.C. § 841(a)(1), the government must prove that the defendant

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knowingly possessed a controlled substance).6 Because we interpret

a criminal statute and not an English textbook, we cannot say that

the best or even most likely reading of § 1028A(a)(1) is to limit

the adverb “knowingly” to the verbs it modifies.

The Fourth Circuit also argues that “knowingly” only

modifies the verbs “transfers, possesses, or uses” because, “good

usage” requires that it be placed “as close as possible to the

words which it modifies.” Montejo, 442 F.3d at 215 (internal

citation omitted). Thus, the court concludes, “knowingly” cannot

modify the entire “lengthy” phrase.7 Id. We are not persuaded by

6
In United States v. X-Citement Video, Inc., 513 U.S. 64
(1994), on which both parties rely, the Supreme Court applied a
“knowingly” scienter requirement to non-verbs in a child
pornography statute. We find this case to be inapposite. The
statute at issue provided punishment for, in relevant part, “‘[a]ny
person who [] knowingly transports or ships . . . any visual
depiction, if – [] the producing of such visual depiction involves
the use of a minor engaging in sexually explicit conduct.’” Id. at
67-68 (quoting 18 U.S.C. § 2252 (1988 ed. and Supp. V)). The Court
extended “knowingly” beyond the verbs it directly modified to “the
use of a minor” because there is a “presumption in favor of a
scienter requirement . . . [for] each of the statutory elements
that criminalize otherwise innocent conduct.” Id. at 72. Here,
“of another person” is not an element that criminalizes otherwise
innocent conduct, so the presumption does not apply. X-Citement
Video, however, does not instruct us that we may only extend a
scienter requirement to an element of a crime when there is such a
presumption. Thus, it does not speak directly to our case.
7
The Fourth Circuit appears to have mistakenly referred to
the phrase in question as a predicate. See Montejo, 442 F.3d at
215. The predicate in 18 U.S.C. § 1028A(a)(1), however, is “shall
. . . be sentenced to a term of imprisonment of 2 years.” See The
Chicago Manual of Style 5.23 (15th ed. 2003) (defining predicate as
“the part that contains a verb and makes an assertion about the
subject” and providing examples). Our phrase is a participial
phrase because it begins with a participle and modifies the subject

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the Fourth Circuit’s reasoning. The phrase is not very long

(fifteen words out of a forty-seven word sentence), and it is one

phrase out of four within the same sentence. There are three

additional phrases in the same sentence to which “of another

person” does not belong. It is as reasonable to read “knowingly”

to extend to all of the words within the phrase it inhabits as it

is to further divide the phrase and limit the reach of “knowingly”

to just a portion of the phrase. See X-Citement Video, 513 U.S. at

79 (Stevens, J., concurring) (“In my opinion, the 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.”).

Thus, we easily reach the conclusion that knowingly can

extend beyond the verbs it directly modifies. The question still

remains, however, does it extend to “of another person”?

The District Court concluded that “knowingly” has to

extend at least to “a means of identification.” Godin II, 489 F.

Supp. 2d at 120; Godin I, 476 F. Supp. 2d at 2. We agree.

Otherwise, the statute would criminalize the transfer, possession,

or use of anything that contained a means of identification, e.g.,

a package, even if the person charged did not know that the thing

he or she transferred, possessed, or used contained a means of

“whoever.” See Id. at 5.109.

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identification. As the District Court noted, such a result would

be absurd.

If during a bank 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.

Id.; see also Villanueva-Sotelo, 515 F.3d at 1238 (reaching the

same conclusion) (citing Godin I, 476 F. Supp. 2d at 2).

We are convinced our interpretation is correct to this

point. We are also convinced that whether “knowingly” extends

beyond “means of identification” to its modifier “of another

person” is ambiguous. In coming to this conclusion we rely

primarily on Liparota v. United States, 471 U.S. 419 (1985), in

which the Court concluded that the plain text of a similarly

structured statute was ambiguous.

The Court analyzed the reach of the scienter requirement

in a food stamp statute that punished “‘[w]hoever knowingly uses,

transfers, acquires, alters, or possesses coupons or authorization

cards in any manner not authorized by this chapter or the

regulations issued pursuant to this chapter.’” Id. at 420 n.1

(quoting 7 U.S.C. § 2024(b)(1) (1982)). The government argued that

“knowingly” did not extend to “in any manner not authorized by this

chapter or the regulations issued pursuant to this chapter.” Id.

at 421. The Court concluded that the text could not answer the

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question. Either limiting knowingly to the verbs and their direct

objects or extending it throughout the entire phrase “would accord

with ordinary usage.” Id. at 424.

The Court then went a step further and explained that

statutes constructed in this manner are generally ambiguous. As an

example, the Court noted that the mens rea requirement in a statute

punishing someone who “knowingly sells a security without a permit”

cannot be determined by the plain text. Id. at 424-25 n.7

(internal citation and quotation marks omitted). “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.” Id.

(internal citation and quotation marks omitted). We join with the

D.C. Circuit and conclude that the text of § 1028A(a)(1) is

ambiguous because the Court has determined that “text alone cannot

resolve statutes structured this way.” See Villanueva-Sotelo, 515

F.3d at 1241.

Because the plain meaning of the text is not clear, “we

consider surrounding language and the statute’s structure.”

Jimenez, 507 F.3d at 19. As we explained in Jimenez, § 1028A has

“two variations.” Id. The jury convicted Godin under the first,

§ 1028A(a)(1). The second, § 1028A(a)(2), provides a harsher

punishment for those who commit aggravated identity theft in

relation to a “terrorism offense.”

Whoever, during and in relation to any [terrorism
offense] knowingly transfers, possesses, or uses, without

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 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.

18 U.S.C. § 1028A(a)(2) (emphasis added). If “knowingly” reaches

“of another person” in § 1028A(a)(2), then it should also stretch

to “of another person” in § 1028A(a)(1).

When arguing Villanueva-Sotelo, the government conceded

that the scienter requirement in § 1028A(a)(2) extended to “false

identification document.” Villanueva-Sotelo, 515 F.3d at 1239.

Thus, in paragraph (2), “knowingly” can reasonably be read to

extend to “of another person” because it reaches all the way to

“false identification document.” See id. at 1239-40. We do not

see that as the only plausible reading, however. A second

reasonable interpretation is that “knowingly” only extends to the

two direct objects and their primary modifiers: “means of

identification” and “false identification documents.” Thus, the

statute’s structure does not resolve the ambiguity.

We may also look to the title of a statute to resolve

ambiguity in the text. Almendarez-Torres v. United States, 523

U.S. 224, 234 (1998). Section 1028A is entitled “Aggravated

identity theft.” As the D.C. Circuit noted, an element of theft is

the intent to deprive another of property. Villanueva-Sotelo, 515

F.3d at 1243 (internal citations omitted). Thus, employing the

D.C. Circuit’s reasoning, “knowingly” must extend to “of another

person” because, to convict someone of theft, the government must

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prove that the defendant knew he or she was taking something from

another.

We do not agree that the title resolves the ambiguity in

the text. Congress’ use of the word “theft” certainly supports the

conclusion that “knowingly” extends to “of another person” and

makes this interpretation eminently reasonable. See United States

v. Jahagirdar, 466 F.3d 149, 153 (1st Cir. 2006) (“‘[W]here

Congress borrows terms of art in which are accumulated the legal

tradition and meaning of centuries of practice, it presumably knows

and adopts the cluster of ideas that were attached to each borrowed

word . . . .’”) (quoting Morissette v. United States, 342 U.S. 246,

263 (1952)). We do not believe, however, that the use of the word

“theft” compels a broad scienter requirement. It is also plausible

that Congress intended to define “identity theft” as using someone

else’s identity rather than taking someone else’s identity. After

all, the effect on a victim’s credit rating is the same whether

someone (1) makes up a social security number, procures credit with

that number, and does not repay or (2) steals a social security

number from a database, procures credit with that number, and does

not repay. It is not clear that, by using the word “theft,”

Congress intended to limit “identity theft” to the latter scenario.

Because the structure and title of the statute do not

resolve the ambiguity in the text, we turn next to the legislative

history. See Darling’s, 444 F.3d at 108. Congress added § 1028A

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to the United States Code through the “Identity Theft Penalty

Enhancement Act,” Pub. L. No. 108-275, 118 Stat. 831 (2004). The

House Report accompanying the Act is replete with the terms “theft”

and “thieves.” “[T]he ‘Identity Theft Penalty Enhancement Act[]’

addresses the growing problem of identity theft.” H.R. Rep. No.

108-528, at 3, as reprinted in 2004 U.S.C.C.A.N. 779, 780. One

stated purpose of the statute is to increase sentences for

“identity thieves.”8 Id. The report also gives examples of

identity theft that fit comfortably within the traditional

definition of theft: a health club employee took credit-card and

social security numbers from health club members; an individual

“stole” identities from multiple people and then used the false

identities to file false tax returns; a woman used a “stolen

identity” to apply for social security benefits. Id. at 5-6, 2004

U.S.C.C.A.N. at 781-82.

From this emphasis on “theft,” the D.C. Circuit concluded

that Congress intended only to punish “thieves,” or those who

knowingly use another’s identification. Villanueva-Sotelo, 515

F.3d at 1244-45. We agree that this is a reasonable reading of the

8
In Jimenez, we noted that another purpose of the
aggravated identity theft statute is to deter the use of real
identifications during the commission of a crime because real
identifications provide better cover than false identifications.
Jimenez, 507 F.3d at 20. We do not question this explanation of
the purpose of the statute, but we do not find it relevant to the
current discussion. Those who use real identification so that
their crimes will be harder to detect generally know that the
identification belongs to another person.

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legislative history. The problem is that one can also reasonably

glean from the legislative history an intent to cover actions that

do not fit the traditional definition of theft. The same House

Report defines identity theft broadly: “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 . . . .”

H.R. Rep. No. 108-528, at 4, 2004 U.S.C.C.A.N. at 780. “All

crimes” could conceivably cover crimes that fall outside

traditional theft. Indeed, several of the anecdotal examples of

identity theft describe crimes that did not involve stealing a

means of identification from another. In one case, a woman used

her husband’s social security number to collect disability

benefits, and, in a similar case, a man used his brother-in-law’s

name and social security number to receive social security

benefits. Id. at 6, 2004 U.S.C.C.A.N. at 782. Neither of these

cases describes a crime in which the defendant stole a means of

identification from another; the only victim was the government.

In another example, one closer to Godin’s case, a woman received

social security benefits using her social security number but used

another’s social security number to procure employment. Id. It is

not clear whether or not the woman knew that the false number

belonged to someone else.

Additionally, the definition of “identity theft” given in

the House Report encompasses the use of false identification to

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receive immigration benefits. Id. at 4, 2004 U.S.C.C.A.N. at 780.

If an undocumented immigrant purchases a social security number

from a third party and uses that number to obtain employment, he or

she may not know that it is assigned to another person. The third

party may know that the number is a valid number, assigned to a

real person, but the immigrant may not. Yet Congress arguably

intended “aggravated identity theft” to cover both the crime

committed by the third party and that committed by the undocumented

immigrant.

Congress’ use of the term “theft” and the accompanying

descriptive anecdotes in the legislative history do not clearly

evince congressional intent. We remain unsure whether, in

codifying § 1028A(a)(1), Congress intended to increase punishment

for crimes in which a person knowingly uses a false means of

identification without knowing that the identification belongs to

another. Thus, we conclude that the legislative history does not

resolve the statute’s ambiguity.

If a statute contains a “grievous ambiguity,” the

ambiguity must be resolved in the defendant’s favor. United States

v. Councilman, 418 F.3d 67, 83 (1st Cir. 2005) (en banc); see also

United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (plurality

opinion) (“The rule of lenity requires ambiguous criminal laws to

be interpreted in favor of the defendants subjected to them.”).

The rule of lenity “‘applies only if, after seizing everything from

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which aid can be derived, [a court] can make no more than a guess

as to what Congress intended.’” Councilman, 418 F.3d at 83

(alteration in original) (quoting Reno v. Koray, 515 U.S. 50, 65

(1995)).

Using all methods of statutory construction available to

us, we are unable to ascertain whether Congress intended the

“knowingly” mens rea requirement to extend to “of another person.”

The language of § 1028A is ambiguous. The ambiguity cannot be

resolved by the statutory structure, the title, or the legislative

history. We hold that the rule of lenity applies, and the scienter

requirement must stretch to “of another person.” Thus, the

District Court instructed the jury in error.

III. Sufficiency of the evidence

Generally, if an erroneous jury instruction is not

harmless error, we vacate the conviction and remand for a new

trial. In the present case, however, Godin also argues that the

government presented insufficient evidence to support a conviction

under § 1028A(a)(1). The two analyses differ as do the necessary

outcomes. United States v. Baldyga, 233 F.3d 674, 679 n.3 (1st

Cir. 2000).

When examining whether the omission of an element in a

jury instruction is harmless error, we ask “‘whether the record

contains evidence that could rationally lead to a contrary finding

with respect to the omitted element.’” Id. at 682 (quoting Neder v.

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United States, 527 U.S. 1, 19 (1999)). If the error is not

harmless, we vacate the conviction and remand for a new trial. Id.

at 679 n.3. When examining the sufficiency of the evidence, we ask

whether, viewing the evidence in the light most favorable to the

jury’s verdict, “a rational factfinder could find that the

government proved the essential elements of its case beyond a

reasonable doubt.” United States v. Marin, 523 F.3d 24, 27 (1st

Cir. 2008) (citing United States v. Stark, 499 F.3d 72, 79 (1st

Cir. 2007)). If we conclude the evidence is not sufficient to

support a charge, we reverse the conviction and dismiss the charge.

Baldyga, 233 F.3d at 679 n.3. When a defendant raises both

arguments, we address the sufficiency of the evidence first. If we

conclude the evidence is sufficient to support a conviction, we

then ask whether the jury instruction error was harmless. If we

conclude that the evidence is not sufficient to support the

conviction and that a motion to acquit should have been granted,

that conclusion is dispositive and we need go no further. See id.

at 682 n.8 (explaining that a court may still find that an

erroneous jury instruction constitutes reversible error after

finding that evidence was sufficient to support the verdict);

United States v. St. Michael’s Credit Union, 880 F.2d 579, 588-89

(1st Cir. 1989) (holding that evidence was sufficient to support

the verdict but vacating conviction and remanding for jury trial

because error in jury instruction was not harmless); United States

-20-
v. Sturm, 870 F.2d 769, 775 (1st Cir. 1989) (same); United States

v. Gens, 493 F.2d 216, 223 (1st Cir. 1974).9

We review the denial of a Rule 29 motion for judgment of

acquittal de novo. United States v. Villafane-Jimenez, 410 F.3d

74, 80 n.6 (1st Cir. 2005). In our review of the evidence

presented at trial, we find nothing to support a finding that Godin

knew that social security number 004-44-XXXX belonged to another

person. The false number was identical to her own except for the

fourth and fifth digits. The only inference a rational jury could

make from this evidence is that Godin randomly selected the two

fabricated numbers. The Agent testified that one cannot know just

by looking at a number whether it is assigned to another person

because there are millions of unassigned numbers. The Agent did

not know that the number was assigned to another until he ran a

search in a secure, password-protected database. The government

9
In Gens, the defendants were charged with eight counts of
willfully misapplying funds from a federally-insured bank. Gens,
493 F.3d at 217. The defendants executed a scheme in which the two
defendants who controlled the bank loaned money to debtors who then
gave the funds to a third defendant. Id. at 218-19. The district
court instructed the jury that, to reach a guilty verdict, they
needed only to find that the defendants knew that loan proceeds
were going to a person other than the debtors. Id. at 221. We
held that this was error because the government also had to show
that the defendants knew that the debtors would not repay. Id. at
222. We reversed the defendants’ convictions on seven of the eight
counts because substantial evidence did not support a finding of
willful misapplication. Id. at 223. On the eighth count, we
vacated the conviction and remanded for a new trial because the
government had presented sufficient evidence for a jury to find
that the defendants knew that the debtor on one of the loans would
not repay. Id. at 223-24.

-21-
presented no evidence showing that Godin had access to a similar

database, knew the individual to whom the social security number

belonged, or somehow accessed that person’s information. The

government concedes as much on appeal, arguing only that the

evidence was sufficient for a jury to find that Godin used a number

that did not belong to her, not that Godin knew it belonged to

another.

Because a rational fact-finder could not find beyond a

reasonable doubt that Godin knew that the false social security

number was assigned to another person, we will reverse Godin’s

conviction for aggravated identity theft under § 1028A(a)(1).

IV. Conclusion

For the foregoing reasons, we reverse Godin’s conviction

and remand with instructions to dismiss the aggravated identity

theft count in the indictment, and to vacate the sentence as to

Count 17.

-Concurring Opinion Follows-

-22-
 LYNCH, Chief Judge, concurring. I concur in the

carefully reasoned panel opinion and wish to say a few words.

Under the aggravated identity theft statute, 18 U.S.C. § 1028A,

Congress created a crime which has the consequence that the

convicted defendant is given a mandatory consecutive sentence of

two years in general, under § 1028A(a)(1), and five years in

terrorism offenses, under § 1028A(a)(2), in addition to the

sentence for the underlying felony. The statute itself shows how

serious Congress was about increasing the mandatory sentence:

section 1028A(b) expressly cuts off most of the mechanisms through

which such a sentence could be reduced.

Congress was responding to the drastic upsurge in what

are called identity theft crimes and which encompass a variety of

situations. The identity fraud statistics considered by Congress

are staggering. See, e.g., H.R. Rep. No. 108-528, at 4, as

reprinted in 2004 U.S.C.C.A.N. 779, 780 ("[T]he loss to businesses

and financial institutions from identity theft [is estimated] to be

$47.6 billion. The costs to individual consumers are 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

-23-
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 (statement of Rep. Jackson Lee) ("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 . . . .").

I view this appeal as presenting two basic queries. The

first is whether Congress intended this identify theft offense,

mandating an enhanced sentence, to apply where the defendant knew

full well she was using, without lawful authority, an

identification which was not her own during a felony (here bank

fraud under 18 U.S.C. § 1344), but did not know beyond a reasonable

doubt that the identification was that of another person. The

second question is, if that was Congress's likely intent, whether

Congress expressed that intent in the text of the statute in terms

sufficiently clear that there is no occasion to resort to the rule

of lenity, which operates in defendant's favor.

A conviction under the statute, and the consequent

mandatory sentence enhancement, requires a jury (or trier of fact)

to find beyond a reasonable doubt that all of the statutory

requirements have been met. Cf. Apprendi v. New Jersey, 530 U.S.

466 (2000). And so the issue has been framed as one of whether the

jury was correctly instructed that the knowledge needed was that

-24-
the defendant "knowingly used a means of identification without

lawful authority," United States v. Godin, 489 F. Supp. 2d 118, 120

(D. Me. 2007), or whether the knowledge needed also extended to the

fact that the identification used was that of another person.

The circuit courts are divided on the issue. Three

circuits and the district judge here would not extend the knowledge

requirement to the fact that the means of identification used was

that of an another person. United States v. Mendoza-Gonzalez, 520

F.3d 912, 915 (8th Cir. 2008); United States v. Hurtado, 508 F.3d

603, 607 (11th Cir. 2007) cert. denied, S. Ct. ___, 2008 WL 488011

(June 9, 2008); United States v. Montejo, 442 F.3d 213, 214 (4th

Cir.), cert. denied, 127 S. Ct. 366 (2006).

The District of Columbia Circuit, United States v.

Villanueva-Sotelo, 515 F.3d 1234, 1236 (D.C. Cir. 2008), and now

the panel here have concluded to the contrary: that the jury must

be charged that the defendant knew the means of identification used

was that of another person.

It would be beneficial if the Supreme Court resolved the

mens rea issue. The circuit conflict is certainly ripe. And there

are a large number of district court opinions on the issue. The

issue is important and affects a large number of cases and a large

number of defendants. For each of those defendants, an additional

mandatory two-year sentence makes a great deal of difference.

-25-
 A large number of cases are involved. The range of

underlying felonies that can trigger this offense is broad. To

give but a few examples of the scope of the issue, this offense can

be charged when an unlawful means of identification is used in the

course of Social Security fraud, 18 U.S.C. § 1028A(c)(11), passport

fraud, id. § 1028A(c)(7), theft of public property, id. §

1028A(c)(1), fraud in the acquisition of a firearm, id. §

1028A(c)(3), citizenship fraud, id. § 1028A(c)(2), and other

crimes.

I agree with the majority opinion that the terms of

§ 1028A(a)(1), taken alone, are ambiguous.10 Based on my reading,

the indications in the legislative history tend to support the

district court's interpretation that the term "knowingly" does not

extend as far as knowledge that the means of identification used is

that of another person. In the legislative history, there are

references both to thefts of the identities of other persons and to

the use of false identifications, including (as here) use of Social

10
There are several other ambiguities which also may affect
the mens rea requirement. One is what is meant by "another
person." Presumably, the statute includes past persons as well as
living persons; it is also possible it was meant to include
identification such as Social Security numbers held in reserve for
future persons.
In addition, the statute is not clear whether the means
of identification must belong to another person, as the district
court interpreted it, or whether the means of identification merely
must be based on the identity of another person. Those issues are
not before us. There is no question here that the Social Security
number here belonged to the Maine resident.

-26-
Security numbers. See H.R. Rep. No. 108-528, at 5-6. The

discussion did not distinguish between the two, nor did it focus on

the mens rea issue which concerns us. The opponents of the

legislation based their opposition on the mandatory nature of the

sentences, and not on differing views of the mens rea requirement.

See 150 Cong. Rec. H4811 (statement of Rep. Scott).

It would be quite logical for Congress to impose

additional punishment when the means of a crime involves the use of

a false identity, both when the defendant knows the identification

is "of another person" and when the defendant does not. I doubt

that Congress would have intended, had it explicitly focused on the

issue, to create an escape clause from the additional punishment

for felons who could not be shown to have known the identification

they used was that "of another person." It is not a stretch to

conclude, as the district court did, that the purpose of the

statute encompassed the use of the Social Security number of an

innocent Maine resident whether the defendant knew the Social

Security number was that person's or not. Godin, 489 F. Supp. 2d

at 121.

Still, the text provides support for the other view. In

favor of defendant's reading is the distinction in language between

the general offense in § 1028A(a)(1) and the terrorism offense in

§ 1028A(a)(2), which could be read as explicitly covering knowing

use of both "a means of identification of another person" and "a

-27-
false identification document." Congress could easily have used

the broader language of subsection (a)(2) in subsection (a)(1), but

did not.

In this situation, guidance may come from the Supreme

Court's latest opinion applying the rule of lenity, United States

v. Santos, ___ U.S. ___, 128 S. Ct. 2020 (June 2, 2008). The

plurality opinion stated that there was "no more reason to think"

that a key term in the statute that Congress had not defined meant

one thing over another. Id. at 2025. That is very close to this

case. Ultimately, Justice Stevens's opinion provided the necessary

vote for a majority and weighed the rule of lenity in the

determination of the outcome where he believed Congress had left

the term undefined but he considered that Congress could not have

intended a particular result. Id. at 2033 (Stevens, J., concurring

in the judgment). So too, here.

In the end, the Supreme Court may resolve this important

question of interpretation of the present statute. Alternatively,

Congress may wish to clarify in new legislation the scope of the

enhanced penalties.

-28-