Criminal law - First Circuit deems aggravated identity theft statute ambiguous and applies rule of lenity - United States v. Godin.

• Author: Woodworth, Jaclyn N.
• Position: CASE COMMENTS

Criminal Law--First Circuit Deems Aggravated Identity Theft Statute Ambiguous and Applies Rule of Lenity--United States v. Godin, 534 F.3d 51 (1st Cir. 2008)

The prosecution usually must prove a criminal defendant had the necessary mens rea, or culpable mental state, generally defined by the legislature in criminal statutes, to convict him or her of a crime. (1) Title 18, section 1028A(a)(1) of the United States Code, the aggravated identity theft statute, provides for an additional two-year term of imprisonment if "during and in relation to" certain enumerated felonies the perpetrator "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." (2) In United States v. Godin, (3) the United States Court of Appeals for the First Circuit considered whether the "knowingly" mens rea requirement of section 1028A(a)(1) extends to "of another person," or if it is limited to "transfers, possesses, [and] uses." (4) The First Circuit held that the mens rea requirement extends to "of another person," thus requiring that the government prove that the defendant knew the means of identification used during an enumerated felony belonged to another person. (5)

In 2006, Cori A. Godin defrauded eight banks of approximately $40,000 through a scheme in which she used seven different fabricated social security numbers. (6) Of the fabricated numbers, only one actually belonged to an individual. (7) The grand jury charged Godin with bank fraud, social security fraud, and aggravated identity theft under section 1028A(a)(1).8 After the district court judge denied Godin's motion to dismiss the aggravated identity theft count, she pleaded guilty to the other charges and proceeded to trial solely on the aggravated identity theft count. (9)

At trial, Godin moved for a judgment of acquittal, contending that because the statute uses the word "knowingly," the government was required to prove that she knew that the social security number she used belonged to another person and that the government had failed to do so. (10) The district court denied the motion and instructed the jury that the government was not required to prove she knew that the means of identification belonged to another person. (11)

The jury returned a guilty verdict, and Godin appealed. (12) On appeal, the First Circuit determined that section 1028A(a)(1) is "grievously ambiguous," and consequently held that the rule of lenity applies, extending the knowledge requirement to "of another person." (13) The court reversed the conviction because the government failed to prove that Godin knew the social security number she used was actually assigned to another person. (14)

When interpreting the elements of a statutory offense, courts begin their analysis by interpreting the statute's text and the plain meaning of the words in the context of the entire statute. (15) If the meaning of the text is ambiguous, or "admit[s] of more than one reasonable interpretation," courts may turn to the legislative history to determine the intent of Congress in enacting the statute. (16) If a court cannot resolve a "grievous ambiguity" by any method of statutory interpretation, the rule of lenity requires a court interpret the ambiguity in favor of the defendant. (17) The rule applies only if "after seizing everything from which aid can be derived, [a court] can make no more than a guess as to what Congress intended." (18) The rule embodies the principles that courts should not extend the reach of a statute beyond what the legislature enacted and that courts should not punish individuals when statutes are ambiguous. (19)

Circuits are divided on whether the "knowingly" mens rea in section 1028A(a)(1) extends to "of another person." (20) The Fourth, Eighth, and Eleventh Circuits have concluded that it does not extend; thus, to be convicted, a defendant is not required to know that the identification he or she used belongs to another person. (21) Each of those circuits looked to the statute's language and reasoned that it is clear that "knowingly" modifies the verbs "transfers, possesses, [and] uses," but does not extend to "of another person." (22) None of these circuits relied on the statute's legislative history, although the Fourth and Eighth Circuits indicated that they would view that history as supporting its interpretation of the text. (23) Furthermore, the Eighth and Eleventh Circuits noted that if Congress had intended to extend the mens rea requirement to the entire provision, it could have drafted the statute in such a way. (24)

The District of Columbia Circuit, however, recently reached the opposite conclusion, holding that the knowledge requirement extends to the phrase "of another person." (25) The D.C. Circuit rejected the notion that "knowingly" only modifies the verbs that follow it and deemed the statute ambiguous because one cannot determine from the words alone if "knowingly" extends to "of another person." (26) After examining the legislative history, the D.C. Circuit concluded that the legislature's intent was not to punish people who were unaware that the identification belonged to someone else. (27) The differing interpretations among the circuits create a split that "shows no sign of abating." (28)

In United States v. Godin, the First Circuit examined whether the "knowingly" mens rea requirement of section 1028(a)(1) extends to "of another person." (29) Relying on the plain language of the statute and the Supreme Court's interpretation of a similarly structured statute, the court was convinced that ambiguity exists as to whether "knowingly" extends to "of another person." (30) When the structure of the statute failed to resolve the ambiguity, the First Circuit turned to the legislative history. (31) The court viewed the legislative history as implying two plausible theories: Congress intended either only to punish those who knowingly use another's identification or to cover actions not fitting the traditional definition of theft. (32) The First Circuit declared that it was unable to ascertain Congress's intent, despite using all of the methods of statutory construction, and that the rule of lenity therefore applied. (33)

Despite the Fourth, Eighth, and Eleventh Circuits' insistence that the text of section 1028A(a)(1) is unambiguous, the First Circuit was correct in determining that the reach of the knowledge requirement is ambiguous because it is not clear how far down the sentence the word "knowingly" is "intended to travel." (34) The statute's ambiguity forced the First Circuit to examine the legislative history, which provided no help, therefore leaving the court with no option but to apply the rule of lenity. (35) Courts apply the rule of lenity where a statute is reasonably susceptible to two interpretations and the differing opinions stand in "equipoise,"...