A federal statute, 18 U.S.C. § 1028A, imposes a mandatory two-year prison sentence on defendants who “knowingly” use “a means of identification of another person” in the course of committing a felony. The two years is in addition to the sentence imposed for the underlying felony. But what exactly does the word “knowingly” refer to in the statute: is it enough that the defendant knew that he was using a means of identification, or must the government also prove that the defendant knew the identification belonged to another person? This is the question raised in a case that the Supreme Court agreed to hear earlier today, United States v. Flores-Figueroa. The unpublished opinion below can be found at 2008 WL 1808508.
SCOTUS Blog summarizes the facts as follows:
The granted case involves Ignacio Carlos Flores-Figueroa, a native of Mexico who had worked at a steel plant in East Moline, Ill. He was accused of using a phony Social Security card and a phony alien registration card. The two numbers on those cards had been assigned to someone else; he argued that he used the documents without knowing the numbers were someone else’s. He was convicted and sentenced to 75 months in prison; 24 of those months represented an enhancement. The Eighth Circuit Court upheld the sentence, concluding that it was not necessary to show that Flores-Figueroa knew he was using another person’s identifying information.
This seems to me a good place for the Court to invoke the Rule of Lenity to resolve a statutory ambiguity in favor of the defendant. As I have described in earlier posts (e.g., here), the Roberts Court has been invoking the Rule of Lenity with some frequency recently. In my view, the Rule is most troubling when it is used to permit someone who has clearly done something wrong to escape criminal liability. Such would not be the case here, as Flores-Figueroa would still face a 51-month sentence even if he wins. Bear in mind that § 1028A imposes punishment in addition to the punishment imposed for an underlying felony. For that significant additional punishment to be just, it is important that it be imposed only on people who have deliberately chosen to do something that is significantly socially harmful — something, that is, beyond commission of the underlying felony, for which punishment is separately imposed. A more rigorous knowledge requirement helps to ensure that the § 1028A sentence enhancement does not become a trap for the merely negligent, but is instead reserved for the defendants who have deliberately chosen to do something that has a high risk creating hardship for others.