Home -> Law Blog Directory -> Federal Judiciary Blogs -> Ninth Circuit Blog

Federal Judiciary

: Ninth Circuit Blog

Case o' The Week: "Dead or Alive" - Agg ID Theft in the West: Maciel-Alcala

Players: Hard-fought case by CD Cal AFPD Alexandra W. Yates. Decision by Judge Wardlaw, joined by Judges Canby and Callahan.

Facts: Maciel was a Mexican citizen living in the U.S., under the stolen identity of Ramirez (a real human being). Id. at *1. Maciel didn?t know Ramirez. Id. Maciel used Ramirez?s identity to buy things, rent an apartment, and get loans and open cell phone accounts. Id. He also used the Ramirez identity to get identification documents. Id. One of those identification documents was a passport which Maciel used when returning from Mexico ? triggering his arrest. Id.

Among other charges Maciel was indicted for agg identity theft (each count of which carries a two-year mandatory-minimum consecutive term). After his Rule 29 motion was denied, he was convicted in a bench trial. Id. at *2.

Issue(s): At trial ?Maciel moved for a judgement of acquittal, contending that the government was required to prove that Maciel knew that Ramon Ramirez was a living person when he obtained Ramirez?s birth certificate and used it to obtain the passport. The district court denied the motion, and Maciel appeals.? Id. at *1. ?We . . . must determine whether the word ?person? as used in § 1028A includes the living and the dead or whether Congress intended that the government must prove the defendant used the identification of a person he knew at the time was alive.? Id. at *2 (emphasis added).

Held: ?Because we agree with the district court that the scienter element of 18 U.S.C. § 1028A requires that the government prove only that Maciel knew that Ramirez was a real person, living or deceased, when he procured the passport using Ramirez?s birth certificate, we affirm.? Id. at *1 (emphasis added).

Of Note: Judge Wardlaw undertakes an admittedly extensive statutory analysis in Maciel-Acala and concludes that conflicts within identity statutes that would arise from the defense interpretation must mean that Congress intended that a ?person? is someone either living, or dead. Id. at *2 - *7. She concedes, however, real ambiguity in the term ? and our guru and fellow blogger Steve Sady has taught us that ambiguity means the Rule of Lenity.

The ROL, however, gets short shrift in Maciel: the opinion dismisses it in two paragraphs, quoting language that the statute must be ?grievously ambiguous? for the Rule of Lenity to apply. Id. at *8. As much as we admire Judge Wardlaw, we respectfully disagree with this particular holding. Notably, the exact same statute was ambiguous enough to trigger the Rule of Lenity in an earlier Ninth Circuit decision by Judge Silverman. See United States v. Miranda-Lopez, 532 F.3d 1034, 1040 (9th Cir. 2008). Granted, Miranda-Lopez referred to another word in § 1028A (?knowingly?), but that term doesn?t seem anymore ?grievously ambiguous? than the statute?s use of the term, ?person.? Notably, Judge Silverman?s analysis was later vindicated in the Supreme Court in Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009).

How to Use: Three Circuits have considered this ?dead or alive? issue: the First, Eighth, and Ninth. Id. at *5. So far we?re 0-3. Nonetheless, this may be a ?live? issue in an agg ID case that is going to trial anyway, to preserve for possible Supreme Court review. After all, the Flores-Figueroa case involved a 3-3 split. 129 S. Ct. at 1889-90. Who knows how the next three Circuits will swing?

For Further Reading: How long are aggravated identity theft sentences? 309 years, in one recent case (with some other charges thrown in for good measure). See article here.

(Although the defendant, Mr. Thompson, will get 46 years off with the ?good time? reduction . . .)

Steven Kalar, Senior Litigator, N.D. Cal. FPD. Website at www.ndcalfpd.org

Image of Steve McQueen from "Dead or Alive," from http://2.bp.blogspot.com/_HKICmu6uNao/ShxfblEZpoI/AAAAAAAAAGY/K71imY1xyvU/s400/wanted_dead_or_alive_1.jpg.

.

Full post as published by Ninth Circuit Blog on March 27, 2010 (boomark / email).