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February 25, 2009

SCOTUS argument today on intriguing federal criminal statute

Continuing a Term in which it is considering a whole bunch of federal criminal statutory interpretation questions, the Supreme Court today will hear argument in Flores-Figueroa v. United States.  This entry at SCOTUSwiki provides an effective account of the basic legal issue in the case:

The federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), imposes a mandatory two-year sentence on anyone who, during and in relation to certain predicate offenses, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”  In Flores-Figueroa v. United States, No. 08-108, the Court will consider whether, to secure a conviction under this statute, the Government must show that the defendant knew that the means of identification he used belonged to another person.

But this editorial in today's New York Times, headlined "And Unequal Justice for Some," effectively highlights that there is a lot more to this case:

The Supreme Court hears arguments Wednesday in the case of an illegal immigrant who provided an employer with phony identification numbers. The court must decide whether he can be convicted of the crime of aggravated identity theft — which carries a heavy mandatory prison sentence — even though he did not know the numbers belonged to specific people.

This is a case about the misapplication of federal law. It also is a case about unequal justice.  The government is misusing the identity theft law to pressure illegal immigrants to agree to quick deportation....

The federal aggravated identity theft statute is aimed at the most serious forms of identity theft — and it says the theft must be done knowingly. Congress wanted to punish those who take the identities of other people to do them harm, typically by trying to drain their bank accounts. Mr. Figueroa did not have the intent necessary to violate this law.  He was guilty of identity fraud — a separate, and lesser, crime.

One of the criminal law’s most important tasks is sorting out degrees of culpability. People like Mr. Flores-Figueroa enter the country illegally to work at jobs that pay little and are often dangerous. Their actions are illegal, but they fall far short of stealing a specific person’s identity to rob someone’s life savings. The Supreme Court should reverse Mr. Flores-Figueroa’s conviction to stop overly aggressive prosecutors from going beyond what the law allows — and to ensure that in identity theft cases, the punishment fits the crime.

February 25, 2009 at 08:59 AM | Permalink


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Read the briefs in this case. They are astonishing -- the Government's position is almost comically frivolous. The petitioner will unquestionably win this case unanimously. I pity the Government lawyer during oral argument.

Posted by: Guest poster | Feb 25, 2009 9:06:51 AM

Surprise surprise, the NY Times is worrying more about the plight of some illegal immigrant than innocent citizens harmed by this appalling conduct. Using someone else's Social Security number can cause them a ton of problems.

There is such a thing as willful blindness satisfying a knowledge scienter requirement.

Posted by: federalist | Feb 25, 2009 12:18:42 PM

The Government has never contended in any of these cases that the defendant was willfully blind, nor has the jury ever been asked to find such an element. Rather, the Government's primary theory is that the "knowingly" requirement does not apply to the "of another person" provision. According to the Government, in the phrase "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person," "knowingly" applies only to "transfers, possesses, or uses." Therefore, someone who "transfers" an envelope thinking it was a birthday card is guilty if the envelope actually contains another person's ID, because he was aware he was "transferring" something. This argument is not worthy of the Government.

Federalist, the Supreme Court will vote for the petitioner unanimously. I imagine this judgment will not reflect the Court's unanimous decision to worry "more about the plight of some illegal immigrant than innocent citizens harmed by this appalling conduct," but rather reflect that we are a society of laws. You frequently criticize courts for bending the rules in favor of defendants; bending the rules in favor of the Government should not be condoned either.

Posted by: Guest poster | Feb 25, 2009 1:03:29 PM

I know what the government's argument is, and I know it's pretty thin gruel. My point is not what the government argued, but was offered in reaction to the Times editorial. I don't feel sorry for this criminal in the slightest.

The legal point was not to dispute your post (sorry I should have been more clear), but just to show that this guy really isn't a victim here.

Posted by: federalist | Feb 25, 2009 1:16:31 PM

I'm curious why you think it will be unanimous. iirc, the circuit split is 3-3, so *roughly* half of circuit judges would go on one side, half on the other. How did you conclude the SC would be unanimous?

Posted by: . | Feb 25, 2009 1:23:18 PM

I read the briefs. The Government's argument is a loser. As for the circuit split, I imagine the quality of the defendants' counsel in the circuits may have been low.

Posted by: Guest poster | Feb 25, 2009 1:40:09 PM

We'll see how oral argument goes. Interested your thoughts guest.

Posted by: federalist | Feb 25, 2009 1:51:26 PM

If this is aggravated identity theft, what is unaggravated identity theft?

Posted by: Kent Scheidegger | Feb 25, 2009 3:21:53 PM

It seems to me that if the government *really* wanted to slow the flow of illegal immigrants seeking work, the most effective method might be to attack demand through a few high-profile criminal prosecutions targeting business people who are complicit in these schemes (in some case, reportedly participating in filling out the false paperwork for employees).

It's sort of like busting the johns might be more effective in preventing the crime of prostitution than busting the prostitutes. Both of these potential solutions, of course, are unlikely to be tried, for similar reasons.

Posted by: Anon | Feb 25, 2009 5:09:24 PM

Here's the transcript:


The gov't lawyer did pretty well for himself.

Posted by: federalist | Feb 25, 2009 5:27:50 PM

This was one of those oral arguments that dealt with hypothetical situations and practical questions that were not particularly relevant to the case at hand. Like the whole line of questioning about what the Government would have to show to prove knowledge ... it didn't much bear on the merits of Flores-Figueroa's petition, given that the Government did not attempt to prove knowledge. It might well be that Flores-Figueroa was willfully blind and the Government could convict him on a retrial; I don't know.

I was confused about the discussion regarding whether writing "John Smith" is enough to trigger the statute. I would think that writing "John Smith," with nothing more, is not a "a means of identification of another person." When I think "means of identification," I think some means of identifying a specific individual, such as a driver's license or a social security card. A document saying "John Smith" with nothing more isn't that. And if the ID card had the name "John Smith," and an ID number that belonged to someone not named "John Smith," I don't see how the addition of "John Smith" would trigger the statute if the ID number alone would not.

I think this case reveals a troubling trend ... that the federal government has a tendency to stretch criminal statutes to their absolute breaking point. The Supreme Court hasn't gone along and, on several occasions, has unanimously disagreed with the Government's theories. Just in the last two years, there was Watson (trading drugs for guns is not "using a gun" in a drug transaction), Chambers (failure to return to prison is not a "violent felony"), and Cuellar (putting money under a floor board in your car is not "money laundering"). Cf. Gonzales v. O Centro (holding 9-0 that O Centro that using hoasca tea is allowed under RFRA); Leocal v. Ashcroft (holding 9-0 that DUI offenses with negligence mens rea are not crimes of violence). When you read the briefs in those cases, the Government's position is very weak; and I find the position in Flores-Figueroa weaker than any of those cases. The federal government has numerous extremely potent prosecutorial tools and the best lawyers in the country; I find it embarrassing when, as representatives of the people, they take these totally unreasonable positions.

Posted by: Guest poster | Feb 25, 2009 5:38:24 PM

And I'd add that although the government's position in Abuelhawa v. United States is textually plausible (although I still think the it should lose, and probably will), I find it depressing that the government would take that position. Haven't they ever heard of prosecutorial discretion?

It reminds me ... there is a federal statute that adds an extra punishment for any crime that is committed with the use of fire. The feds have pressed the theory consistently that arson crimes should be subjected to this enhancement. Plain text of the statute, baby! This theory has been rejected by all the circuits to have considered it, so it hasn't gone upstairs. Honestly, the government shouldn't be making this sort of argument. Cf. the argument, that the federal government has also pushed, that a kingpin's underling should be prosecuted for "aiding and abetting" the kingpin under the federal kingpin statute.

Posted by: Guest poster | Feb 25, 2009 5:48:36 PM

This was the statute that the federal prosecutors used to coerce over 500 defendants in the Postville, Iowa immigration raid last year to plead guilty. I think I remember reading they all got prison terms..

Posted by: James Law | Feb 25, 2009 8:30:38 PM

Not sure if they can be able to work free from this one,but you never know what the jury will decide,lets hope for the better

Posted by: 5ID | Feb 4, 2011 2:55:43 AM

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