Cert Grant: What Is “Knowing” Identity Theft?

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, U.S. Supreme Court

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  The unpublished opinion below can be found at 2008 WL 1808508.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.

3 thoughts on “Cert Grant: What Is “Knowing” Identity Theft?”

  1. 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.

    The standard Mr. O’Hear proposes sounds more like reckless indifference: “I didn’t mean to kill anyone, Officer, when I hurled that brick off the highway overpass into rush hour traffic”.

    No argument that the bad deed was done and done intentionally, but there was no active intent to do further wrong (i.e. kill a car driver).

    The behavior of the gentleman from Mexico would seem to fall in the same category. Not negligence, since that implied lack of intentionality of the act, but depraved or reckless indifference of its effect.

  2. As a mere 1.5L, I have to come down on the side of applying the Rule of Lenity here. The Statute could have criminalized knowing use of false means of identification, or identification illegally or improperly obtained, or the like but it is not so written. I also wonder why the spell-checker on this Comment page does not recognize the words ‘lenity’ or ‘criminalized’.

  3. m pttn’s thoughtful comment helps me to see that I was not as clear as I should have been in describing what I think the mens rea standard ought to be. I see a two-year mandatory consecutive sentence as pretty tough stuff that ought to be reserved for the most serious cases of identity theft, bearing in mind that less serious identify theft can (and should) be regarded by the sentencing judge as an aggravating factor when selecting a sentence for the underlying felony. It seems to me that a standard requiring knowledge that someone else’s identity is being used gets it just about right. Of course, knowledge that one is using a fake identity means that one is aware of a risk that the fake identity actually belongs to someone else, but knowledge of risk is not the same thing (and not as blameworthy) as knowledge that one is actually using another person’s identity. Nor does this mean that identity thieves are entirely free to bury their heads in the sand with respect to the risk; knowledge (as a form of culpability) does not require absolute certainty, and jurors will surely be quick to infer knowledge where they see defendants acting in obvious bad faith with respect to the risk of harm to others.

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