UNITED STATES, Appellee, v. Cori A. GODIN, Defendant, Appellant.
No. 07-2332.
United States Court of Appeals, First Circuit.
Decided July 18, 2008.
534 F.3d 51
Heard Feb. 8, 2008.
Chandler also argues that his sentence represents an unreasonable application of the
III.
In his pro se brief, Chandler raises an ineffective assistance of counsel claim, alleging that one of his attorneys assured him that he would receive a 97-month sentence if he entered into the plea agreement. In Teeter, we recognized that “a claim ‘that the plea proceedings were tainted by ineffective assistance of counsel’ is an illustration of an instance where an appellate court may refuse to honor the waiver.” De-La-Cruz Castro, 299 F.3d at 14 (quoting Teeter, 257 F.3d at 25 n. 9). However, Chandler‘s ineffective assistance claim is based upon facts that are not in the record and, hence, is not properly before us. United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.1993) (noting that “[w]e have held with a regularity bordering on the monotonous that fact-specific claims of ineffective assistance cannot make their debut on direct review of criminal convictions“).
Chandler also notes the recent retroactive revisions to the sentencing guidelines for crack cocaine offenses and asks us to remand for resentencing in accordance with those revisions. The remedy for defendants who believe they are entitled to such resentencing is to file a motion with the district court seeking relief under
Appeal dismissed.
Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.
Before LYNCH, Chief Judge, TORRUELLA, Circuit Judge, and TASHIMA,* Senior Circuit Judge.
TASHIMA, Senior Circuit Judge.
Defendant-Appellant Cori A. Godin challenges her conviction for aggravated identity theft under
I. Background
In 2006, Godin defrauded eight banks and credit unions (collectively, the “banks“). She opened accounts using fabricated social security numbers, closed some accounts, and then deposited checks drawn on the closed accounts into the still open accounts. Godin then withdrew funds from the falsely inflated accounts. In this manner, Godin defrauded the banks of approximately $40,000.
Godin fabricated seven different social security numbers by altering the fourth and fifth digits of her own social security number. Godin‘s social security number is 004-82-XXXX.2 Of the seven fabricated numbers, only one, number 004-44-XXXX, belonged to another person. Godin opened an account at Bank of America with the fabricated 004-44-XXXX number but provided the bank with her correct name, address, date of birth, driver‘s license number, and telephone number.
The government charged Godin in a seventeen-count indictment: six counts of bank fraud in violation of
Godin moved to dismiss Count 17, the aggravated identity theft count, arguing that the government had to prove that she knew that the 004-44-XXXX social security number belonged to another person. The District Court denied the motion to dismiss, but declined to reach the mens rea issue. United States v. Godin (Godin I), 476 F.Supp.2d 1 (D.Me.2007). Noting that what Godin knew about the number remained a question of fact,3 the District Court “decline[d] to make an abstract decision on an issue that ultimately may not reflect the actual facts.” Id. at 3.
Thereafter, Godin pleaded guilty to the sixteen bank and social security fraud counts. Godin proceeded to trial only on Count 17, the aggravated identity theft count. At trial, Godin stipulated that she committed bank and social security fraud and that she knew that the social security numbers she used in relation to those felonies were not her own.
The government called two witnesses. The first was employed by Bank of America and testified that Godin used number 004-44-XXXX to open an account but that she gave the bank her correct name, address, phone number, driver‘s license number, and date of birth. The government then called a Special Agent for the Social Security Administration (“Agent“). The Agent testified that by searching a secure and password-protected Social Security Administration database, he determined that social security number 004-44-XXXX was assigned to a man who resided in
After the government‘s case in chief, Godin moved for a judgment of acquittal pursuant to
Both parties debated the scienter requirement at a jury charge conference. While acknowledging that it was “a close issue,” the District Court instructed the jury as follows:
To convict Cori Godin of this offense, the government must prove each of the following elements beyond a reasonable doubt:
First, Cori Godin committed bank fraud and / or social security fraud felony violations. The parties stipulate that she did so.
Second, during and in relation to one or both of those other felony violations, Cori Godin knowingly used a means of identification without lawful authority.
Third, that means of identification belonged to another person.
...
“Knowingly” means that the act was done voluntarily and intentionally and not because of mistake or accident. The government must prove that Cori Godin knew that she did not have lawful authority to use the means of identification in question. The government is not required to prove that she knew the means of identification actually belonged to another person.
United States v. Godin (Godin II), 489 F.Supp.2d 118, 119-20 (D.Me.2007).
In explaining its decision, the District Court first noted that the language of
The jury returned a guilty verdict. Godin timely appeals, contending that the court charged the jury in error and that the evidence was insufficient to convict her of aggravated identity theft under
II. Scienter Requirement
The circuits are divided on the issue of whether the “knowingly” scienter requirement in
Our interpretive task begins with the statute‘s text. United States v. Jimenez, 507 F.3d 13, 19 (1st Cir.2007). We look to the plain meaning of the words in “the broader context of the statute as a whole.” United States v. Roberson, 459 F.3d 39, 51 (1st Cir.2006) (quoting Mullane v. Chambers, 333 F.3d 322, 330 (1st Cir.2003)). If the meaning of the text is unambiguous our task ends there as well. Id. If the statute is ambiguous, we look beyond the text to the legislative history in order to determine congressional intent. Gen. Motors Corp. v. Darling‘s, 444 F.3d 98, 108 (1st Cir.2006) (internal citations omitted). “A statute is ambiguous only if it admits of more than one reasonable interpretation.” Id. (citing Thinking Machs. Corp. v. Mellon Fin. Servs. Corp. #1 (In re Thinking Machs. Corp.), 67 F.3d 1021, 1025 (1st Cir.1995)).
Section 1028A(a)(1) provides, in relevant part,
Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.
The government argues that “knowingly,” because it is an adverb, modifies the verbs, and the Fourth, Eighth, and Eleventh Circuits agree. Mendoza-Gonzalez, 520 F.3d at 915; Hurtado, 508 F.3d at 609; Montejo, 442 F.3d at 215. In a purely grammatical sense, “knowingly,” as an adverb, modifies only the verbs “transfers, possesses, or uses.” In interpreting
The Fourth Circuit also argues that “knowingly” only modifies the verbs “transfers, possesses, or uses” because, “good usage” requires that it be placed “as close as possible to the words which it modifies.” Montejo, 442 F.3d at 215 (internal citation omitted). Thus, the court concludes, “knowingly” cannot modify the entire “lengthy” phrase.7 Id. We are not persuaded by the Fourth Circuit‘s reasoning. The phrase is not very long (fifteen words out of a forty-seven word sentence), and it is one phrase out of four within the same sentence. There are three additional phrases in the same sentence to which “of another person” does not belong. It is as reasonable to read “knowingly” to extend to all of the words within the phrase it inhabits as it is to further divide the phrase and limit the reach of “knowingly” to just a portion of the phrase. See X-Citement Video, 513 U.S. at 79, 115 S.Ct. 464 (Stevens, J., concurring) (“In my opinion, the normal, commonsense reading of a subsection of a criminal statute introduced by the word ‘knowingly’ is to treat that adverb as modifying each of the elements of the offense identified in the remainder of the subsection.“).
Thus, we easily reach the conclusion that knowingly can extend beyond the verbs it directly modifies. The question still remains, however, does it extend to “of another person“?
The District Court concluded that “knowingly” has to extend at least to “a
If during a bank conspiracy, I hand a defendant a sealed envelope asking her to transfer it and its contents to another and she knowingly does so, she has knowingly transferred the envelope and its contents. But, if she believes my statement that the envelope contains only a birthday card when in fact it contains a forged social security card, the government surely would not contend that she should receive the enhanced penalty.
Id.; see also Villanueva-Sotelo, 515 F.3d at 1238 (reaching the same conclusion) (citing Godin I, 476 F.Supp.2d at 2).
We are convinced our interpretation is correct to this point. We are also convinced that whether “knowingly” extends beyond “means of identification” to its modifier “of another person” is ambiguous. In coming to this conclusion we rely primarily on Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), in which the Court concluded that the plain text of a similarly structured statute was ambiguous.
The Court analyzed the reach of the scienter requirement in a food stamp statute that punished “[w]hoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by this chapter or the regulations issued pursuant to this chapter.” Id. at 420 n. 1, 105 S.Ct. 2084 (quoting
The Court then went a step further and explained that statutes constructed in this manner are generally ambiguous. As an example, the Court noted that the mens rea requirement in a statute punishing someone who “knowingly sells a security without a permit” cannot be determined by the plain text. Id. at 424-25 n. 7, 105 S.Ct. 2084 (internal citation and quotation marks omitted). “As a matter of grammar the statute is ambiguous; it is not at all clear how far down the sentence the word ‘knowingly’ is intended to travel.” Id. (internal citation and quotation marks omitted). We join with the D.C. Circuit and conclude that the text of
Because the plain meaning of the text is not clear, “we consider surrounding language and the statute‘s structure.” Jimenez, 507 F.3d at 19. As we explained in Jimenez,
Whoever, during and in relation to any [terrorism offense] knowingly transfers, possesses, or uses, without lawful authority, a means of identification of an
other person or a false identification document shall in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 5 years.
When arguing Villanueva-Sotelo, the government conceded that the scienter requirement in
We may also look to the title of a statute to resolve ambiguity in the text. Almendarez-Torres v. United States, 523 U.S. 224, 234, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Section 1028A is entitled “Aggravated identity theft.” As the D.C. Circuit noted, an element of theft is the intent to deprive another of property. Villanueva-Sotelo, 515 F.3d at 1243 (internal citations omitted). Thus, employing the D.C. Circuit‘s reasoning, “knowingly” must extend to “of another person” because, to convict someone of theft, the government must prove that the defendant knew he or she was taking something from another.
We do not agree that the title resolves the ambiguity in the text. Congress’ use of the word “theft” certainly supports the conclusion that “knowingly” extends to “of another person” and makes this interpretation eminently reasonable. See United States v. Jahagirdar, 466 F.3d 149, 153 (1st Cir.2006) (“‘[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word ....‘“) (quoting Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952)). We do not believe, however, that the use of the word “theft” compels a broad scienter requirement. It is also plausible that Congress intended to define “identity theft” as using someone else‘s identity rather than taking someone else‘s identity. After all, the effect on a victim‘s credit rating is the same whether someone (1) makes up a social security number, procures credit with that number, and does not repay or (2) steals a social security number from a database, procures credit with that number, and does not repay. It is not clear that, by using the word “theft,” Congress intended to limit “identity theft” to the latter scenario.
Because the structure and title of the statute do not resolve the ambiguity in the text, we turn next to the legislative history. See Darling‘s, 444 F.3d at 108. Congress added
From this emphasis on “theft,” the D.C. Circuit concluded that Congress intended only to punish “thieves,” or those who knowingly use another‘s identification. Villanueva-Sotelo, 515 F.3d at 1244-45. We agree that this is a reasonable reading of the legislative history. The problem is that one can also reasonably glean from the legislative history an intent to cover actions that do not fit the traditional definition of theft. The same House Report defines identity theft broadly: “The terms ‘identity theft’ and ‘identity fraud’ refer to all types of crimes in which someone wrongfully obtains and uses another person‘s personal data....” H.R.Rep. No. 108-528, at 4, 2004 U.S.C.C.A.N. at 780. “All crimes” could conceivably cover crimes that fall outside traditional theft. Indeed, several of the anecdotal examples of identity theft describe crimes that did not involve stealing a means of identification from another. In one case, a woman used her husband‘s social security number to collect disability benefits, and, in a similar case, a man used his brother-in-law‘s name and social security number to receive social security benefits. Id. at 6, 2004 U.S.C.C.A.N. at 782. Neither of these cases describes a crime in which the defendant stole a means of identification from another; the only victim was the government. In another example, one closer to Godin‘s case, a woman received social security benefits using her social security number but used another‘s social security number to procure employment. Id. It is not clear whether or not the woman knew that the false number belonged to someone else.
Additionally, the definition of “identity theft” given in the House Report encompasses the use of false identification to receive immigration benefits. Id. at 4, 2004 U.S.C.C.A.N. at 780. If an undocumented immigrant purchases a social security number from a third party and uses that number to obtain employment, he or she may not know that it is assigned to another person. The third party may know that the number is a valid number, assigned to a real person, but the immigrant may not. Yet Congress arguably intended “aggravated identity theft” to cover both the crime committed by the third party and that committed by the undocumented immigrant.
Congress’ use of the term “theft” and the accompanying descriptive anecdotes in the legislative history do not clearly evince congressional intent. We remain unsure whether, in codifying
If a statute contains a “grievous ambiguity,” the ambiguity must be resolved in the defendant‘s favor. United States v. Councilman, 418 F.3d 67, 83 (1st Cir.2005) (en banc); see also United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 2025, 170 L.Ed.2d 912 (2008) (plurality opinion) (“The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.“). The rule of lenity “‘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.‘” Councilman, 418 F.3d at 83 (alteration in original) (quoting Reno v. Koray, 515 U.S. 50, 65, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995)).
Using all methods of statutory construction available to us, we are unable to ascertain whether Congress intended the “knowingly” mens rea requirement to extend to “of another person.” The language of
III. Sufficiency of the evidence
Generally, if an erroneous jury instruction is not harmless error, we vacate the conviction and remand for a new trial. In the present case, however, Godin also argues that the government presented insufficient evidence to support a conviction under
When examining whether the omission of an element in a jury instruction is harmless error, we ask ““whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.‘” Id. at 682 (quoting Neder v. United States, 527 U.S. 1, 19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). If the error is not harmless, we vacate the conviction and remand for a new trial. Id. at 679 n. 3. When examining the sufficiency of the evidence, we ask whether, viewing the evidence in the light most favorable to the jury‘s verdict, “a rational factfinder could find that the government proved the essential elements of its case beyond a reasonable doubt.” United States v. Marin, 523 F.3d 24, 27 (1st Cir.2008) (citing United States v. Stark, 499 F.3d 72, 79 (1st Cir.2007)). If we conclude the evidence is not sufficient to support a charge, we reverse the conviction and dismiss the charge. Baldyga, 233 F.3d at 679 n. 3. When a defendant raises both arguments, we address the sufficiency of the evidence first. If we conclude the evidence is sufficient to support a conviction, we then ask whether the jury instruction error was harmless. If we conclude that the evidence is not sufficient to support the conviction and that a motion to acquit should have been granted, that conclusion is dispositive and we need go no further. See id. at 682 n. 8 (explaining that a court may still find that an erroneous jury instruction constitutes reversible error after finding that evidence was sufficient to support the verdict); United States v. St. Michael‘s Credit Union, 880 F.2d 579, 588-89 (1st Cir.1989) (holding that evidence was sufficient to support the verdict but vacating conviction and remanding for jury trial because error in jury instruction was not harmless); United States v. Sturm, 870 F.2d 769, 775 (1st Cir.1989) (same); United States v. Gens, 493 F.2d 216, 223 (1st Cir.1974).9
Because a rational fact-finder could not find beyond a reasonable doubt that Godin knew that the false social security number was assigned to another person, we will reverse Godin‘s conviction for aggravated identity theft under
IV. Conclusion
For the foregoing reasons, we reverse Godin‘s conviction and remand with instructions to dismiss the aggravated identity theft count in the indictment, and to vacate the sentence as to Count 17.
LYNCH, Chief Judge, concurring.
I concur in the carefully reasoned panel opinion and wish to say a few words. Under the aggravated identity theft statute,
Congress was responding to the drastic upsurge in what are called identity theft crimes and which encompass a variety of situations. The identity fraud statistics considered by Congress are staggering. See, e.g., H.R.Rep. No. 108-528, at 4, as reprinted in 2004 U.S.C.C.A.N. 779, 780 (“[T]he loss to businesses and financial institutions from identity theft [is estimated] to be $47.6 billion. The costs to individual consumers are estimated to be approximately $5.0 billion.“);
I view this appeal as presenting two basic queries. The first is whether Congress intended this identify theft offense, mandating an enhanced sentence, to apply where the defendant knew full well she was using, without lawful authority, an identification which was not her own during a felony (here bank fraud under
A conviction under the statute, and the consequent mandatory sentence enhancement, requires a jury (or trier of fact) to find beyond a reasonable doubt that all of the statutory requirements have been met. Cf. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). And so the issue has been framed as one of whether the jury was correctly instructed that the knowledge needed was that the defendant “knowingly used a means of identification without lawful authority,” United States v. Godin, 489 F.Supp.2d 118, 120 (D.Me.2007), or whether the knowledge needed also extended to the fact that the identification used was that of another person.
The circuit courts are divided on the issue. Three circuits and the district judge here would not extend the knowledge requirement to the fact that the means of identification used was that of an another person. United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir.2008); United States v. Hurtado, 508 F.3d 603, 607 (11th Cir.2007) cert. denied, 553 U.S. 1107, 128 S.Ct. 2903, 171 L.Ed.2d 844 (2008); United States v. Montejo, 442 F.3d 213, 214 (4th Cir.), cert. denied, 549 U.S. 879, 127 S.Ct. 366, 166 L.Ed.2d 138 (2006).
The District of Columbia Circuit, United States v. Villanueva-Sotelo, 515 F.3d 1234, 1236 (D.C.Cir.2008), and now the panel here have concluded to the contrary: that the jury must be charged that the defendant knew the means of identification used was that of another person.
It would be beneficial if the Supreme Court resolved the mens rea issue. The circuit conflict is certainly ripe. And there are a large number of district court opinions on the issue. The issue is important and affects a large number of cases and a large number of defendants. For each of those defendants, an additional mandatory two-year sentence makes a great deal of difference.
A large number of cases are involved. The range of underlying felonies that can trigger this offense is broad. To give but a few examples of the scope of the issue, this offense can be charged when an unlawful means of identification is used in the course of social security fraud,
I agree with the majority opinion that the terms of
It would be quite logical for Congress to impose additional punishment when the means of a crime involves the use of a false identity, both when the defendant knows the identification is “of another person” and when the defendant does not. I doubt that Congress would have intended, had it explicitly focused on the issue, to create an escape clause from the additional punishment for felons who could not be shown to have known the identification they used was that of “another person.” It is not a stretch to conclude, as the district court did, that the purpose of the statute encompassed the use of the Social Security number of an innocent Maine resident whether the defendant knew the Social Security number was that person‘s or not. Godin, 489 F.Supp.2d at 121.
Still, the text provides support for the other view. In favor of defendant‘s reading is the distinction in language between the general offense in
In this situation, guidance may come from the Supreme Court‘s latest opinion applying the rule of lenity, United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 2025, 170 L.Ed.2d 912 (2008). The plurality opinion stated that there was “no more reason to think” that a key term in the statute that Congress had not defined meant one thing over another. Id. at 2025. That is very close to this case. Ultimately, Justice Stevens‘s opinion provided the necessary vote for a majority and weighed the rule of lenity in the determination of the outcome where he believed Congress had left the term undefined but he considered that Congress could not have intended a particular result. Id. at 2033 (Stevens, J., concurring in the judgment). So too, here.