United States v. Retana
2011 U.S. App. LEXIS 11438
| 8th Cir. | 2011Background
- Retana used his father's social security number to run a construction business, open a Bank of America account, and file tax papers.
- He used the number to conceal wage practices, paying below prevailing rates on a federal project, avoiding unemployment insurance, employing illegal aliens, and submitting false payrolls to the Navy.
- Retana received roughly $440,000 for government project work, but paid workers substantially less and could not account for over half of the funds.
- He faced charges including theft of government money, theft from a federally funded program, three false statements, and aggravated identity theft; he pled guilty to all counts except aggravated identity theft.
- As to aggravated identity theft, Retana admitted all elements except that his use was without lawful authority, noting his father’s permission to use the number.
- The district court ruled that the use was without lawful authority and convicted Retana; on appeal, he challenges that ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether permission from the owner of the ID suffices for 'without lawful authority'. | Retana argues permission defeats 'without lawful authority'. | Retana contends lawful authority exists via his father's permission or lack of knowledge of insufficiency. | No; permission does not establish lawful authority under §1028A(a)(1). |
| Whether Flores-Figueroa alters Hines on mens rea for 'without lawful authority'. | Flores-Figueroa undermines Hines by requiring knowing illegality. | Retana argues Flores-Figueroa erodes Hines' conclusion that permission is irrelevant. | Flores-Figueroa clarifies knowledge; Hines remains valid that permission does not confer lawful authority. |
| Whether Retana knew the father's permission was insufficient to authorize use. | Sufficiency of permission is a jury/fact issue; district court credited no lawful authority. | Retana argues government failed to prove lack of lawful authority beyond father's permission. | Evidence supports district court's finding of lack of lawful authority and sufficiency for conviction. |
Key Cases Cited
- United States v. Hines, 472 F.3d 1038 (8th Cir. 2007) (use of another's SSN with permission still can be without lawful authority)
- Flores-Figueroa v. United States, 556 U.S. 647 (U.S. 2009) (knowledge applies to 'without lawful authority' under §1028A(a)(1))
- Liparota v. United States, 471 U.S. 419 (U.S. 1985) (statutory knowledge applies to 'not authorized by law')
- United States v. Mobley, 618 F.3d 539 (6th Cir. 2010) (unaccounted use of SSN supported by lack of lawful authority)
- United States v. Peterson, 632 F.3d 1038 (8th Cir. 2011) (deference to district court on factual sufficiency when jury trial waived)