*1 privacy and “that the interest that would protecting privacy and statutes the of the See, be compromised disclosure of the files taxpayer. e.g., 26 U.S.C. greater Maj. Op. is than de minimis.” at (making felony it a for federal state majority weighs 1230. the It when willfully employees tax disclose return in privacy the interest nondisclosure information); 18 U.S.C. 1905 (imposing public against the interest the disclosure penalties employees criminal on federal myself of the records that I find in dis- alia, disclosing, inter the “amount or Instead, agree agreement. I with the dis- income, losses, any profits, source of public trict court interest involved firm, expenditures person, partner- lightly of these disclosure files sits association”). ship, corporation, or It upon the scales balance. accepted to be seems well that it would be for noted, government compel unfair As district court the ma- tax- and “ jority payers and acknowledges, there is ‘drastical- disclose information then ly public spread deereas[ed]’ interest disclosure allow that information to be Compliance of the File because it does not large regard without to the privacy payment connecting include information its taxpayer. Today’s ruling puts the farmers data to specific Maj. Op. subsidies.” in the same circumstances we would not LLC, Multi Media AG impose upon taxpayers. other citizens and *5). WL theAs district court I therefore affirm would the conclusion noted, given further the volume of other judgment of the district court that the already information other disclosed from privacy protected by Exemption interest databases, and the fact salient light would outweigh public interest dispute files in contain no information disclosure. subsidies, about “[disclosing USDA Again, join I although in most of the withheld Compliance information in the file reasoning of majority, I dissent from merely would pri- reveal information about its conclusion. citizens, vate shedding any without on light government’s activities.” 2006 WL court, at *5. Like the district not unlike the I majority, Ag’s find Multi (or

argument that no there is invasion no invasion)

more than minimal priva- of the cy interests the farmers most uncon- America, UNITED STATES Of vincing. argument depends That upon the Appellant proposition that much there is more finan- cial information in the universe of facts Gustavo VILLANUEVA-

about the individual farmers that will not SOTELO, Appellee. be disclosed than there is be- information ing disclosed. To me this makes no more No. 07-3055. sense saying than be acceptable would United States Court of Appeals, government to disclose con- District of Columbia Circuit. tents of tax they returns because do not provide concerning information hold- Argued Nov. 2007. ings or expectations taxpayer Feb. Decided therefore would constitute no invasion privacy. That proposition makes so little

sense that there specific regulations are *2 Epstein,

Ellen Assistant U.S. Chubin Attorney, argued appellant. the cause for Jeffrey A. her on briefs were With McLeese, Attorney, Roy Taylor, W. Trosman, III, and Frederick W. Elizabeth Yette, Attorneys. Assistant U.S. Kiersh, by appointed Steven R. court, filed the brief the cause and argued appellee. TATEL, Before: HENDERSON WILLIAMS, Senior Judges, and Circuit Judge. Circuit Opinion for the Court filed Security proving Circuit Homeland its holder is Judge stay TATEL. authorized to work in the United displayed States. Villanueva-Sotelo’s card Dissenting opinion filed Circuit *3 name photograph, his own and listed Mexi- Judge HENDERSON. country origin, co as his of and an included TATEL, Judge: registration Circuit alien number. Villanueva-So- telo admits he card knew the was a fake. “[aggravated identity The federal theft” Although government the can prove that imposes years two additional of registration displayed the alien number on imprisonment any person during on who belonged individual, the card to another it of felony the commission an enumerated critically this it for case—that concedes— transfers, uses, “knowingly possesses, any lacks evidence that Villanueva-Sotelo authority, without lawful of identi- means actually knew this. person.” fication of another 18 U.S.C. 1028A(a)(l). § question The us is government charged before Villanueva-So- this: to obtain a conviction section under entry telo with unlawful of a removed alien 1028A(a)(l), 1326(a) government prove (b)(1) § must in violation 8 U.S.C. and (count one), the defendant knew the “means identifi- possession of a fraudulent doc- “transfer[red], possessefd], cation” he prescribed or ument stay for authorized actually belonged per- use[d]” to “another in employment United States viola- son,” 1546(a) (count or is it government two), sufficient for the tion of 18 U.S.C. to show that the means of aggravated identity identification theft in violation happened, three). belong person? 1028A(a)(l) (count another of 18 U.S.C. text, full, Based on purpose, the statute’s In the identity theft statute reads: legislative history “Whoever, mindful that during relation to —and when, rule of lenity into play comes after felony violation enumerated subsection resort (c), to the traditional statutory tools of knowingly transfers, possesses, or interpretation, uses, reasonable doubt remains authority, without a means lawful as to the meaning statute’s hold that shall, —we identification of 1028A(a)(l)’s require- mens rea punishment provided addition to the ment phrase extends to the felony, “of another such be sentenced to a term of person,” meaning that government imprisonment years.” of 2 Id. must prove added). actually the defendant knew question belonged identification in pled guilty Villanueva-Sotelo to the first someone else. two counts but moved to dismiss count three, aggravated theft

I. 1028A(a)(l) charge, arguing that section Villanueva-Sotelo, Defendant government Gustavo requires prove he actu- national, Mexican has ally entered the United knew registration the alien number illegally States three times and has been belonged to another person. Agreeing deported In August 2006, twice. defendant, District with Judge Friedman held Metropolitan Columbia ap- Police “knowingly” the word in proached Villanueva-Sotelo and asked him “modify must both the verbs for identification. pre- object, is, Villanueva-Sotelo and the ‘means of identifica- sented the officers with what appeared to person.’ Hr’g of another Tr. at 50 a permanent 4, 2007). be resident (Apr. conclusion, card—an official In reaching this document by the Department issued Judge found following exchange (1997). does, it L.Ed.2d 808 If our illuminat- particularly prosecutor apply and we the statute’s inquiry ends ing: Coal, plain language. Sigmon stealing in the [I]t [PROSECUTOR]: But if find 122 S.Ct. 941. we U.S. I a number and up if make sense that statutory language ambiguous, we look else, I taken belongs to someone beyond the text for other indicia of con- was rightfully number that Staples intent. See gressional assigned by agency. U.S. you up If make num- THE COURT: (1994) (“[D]etermining L.Ed.2d 608

ber? *4 required mental for commission state I—IfYes. [PROSECUTOR]: requires of of a federal crime ‘construction up a you What if make THE COURT: ... of the intent the statute and inference belong anybody? doesn’t number that ” (omission Congress.’ original) (quot- of you Then don’t [PROSECUTOR]: Balint, 250, v. States 258 U.S. offense, is there no offense charge the (1922))). 301, 253, 42 S.Ct. 66 L.Ed. 604 not a of identification it’s means because person. of another essence, its Reduced to if the defendant THE COURT: So 1028A(a)(l) reads as follows: “Whoever it of the air and picked a number out uses, ... ... without lawful knowingly [your] number, guilty, he’s he was but an authority, means of identification of number of the air and picked a out to a person shall be sentenced other Enforce- [Immigration and Customs years.” of Ac imprisonment term anybody, he’s assigned it to ment] hasn’t this is cording government, to the text guilty? unambiguous: knowledge the statute’s re That’s correct. [PROSECUTOR]: far as “means quirement extends so sce- to conclude that a Id. at 15. Unable identification,” proof no requiring theft, nario like this amounts knew identification be defendant 48, granted Friedman Judge id. at see person.” part, For longed to “another his to dismiss motion Villanueva-Sotelo’s is contends the statute Villanueva-Sotelo count three. title, ambiguous provision’s and that appeals. Because government The now history reveal purpose, question statu- pure presents this case the mens rea Congress’s intent extend review the district tory interpretation, we throughout the entire sen requirement v. de novo. See Butler court’s decision tence, “of another namely way all the (D.C.Cir.1999). West, 634, 164 F.3d the defendant. agree with person.” We interpretation Although government’s II. represents nothing suggests plausible, plau only possible even most interpretive begins task with Our —or 1028A(a)(l). of section reading language. See Barnhart the statute’s sible— 76, F.3d McCreary Offner, 172 Co., Sigmon Coal 534 U.S. (D.C.Cir.1999) ambigu (finding a statute (2002). We S.Ct. 151 L.Ed.2d “reasonably susceptible because it was ous lan whether must first “determine see Air meaning”); one also to more than unambigu plain has a guage at issue FAA, Transp. Am. v. Ass’n regard particular meaning ous (D.C.Cir.1999) (“Although inference in the case.” Robinson v. Shell dispute to the statute’s Co., draw as petitioner would Oil person.” phrase means unreason- “of another But meaning is not diagram statutory relevant simple inevitable.”). able, it is also not that, readily text demonstrates from “knowing- on the word parties focus view, point this grammatical is not ly,” that adverb modifies debating whether question: correct *5 identification,” which, turn, “knowingly” technically phrase The word modifies “of is (“uses”). only the verb that follows it It prepositional phrase, modified a second object neither direct person.” another As the government “of modifies (“means”) prepositional phras- concedes, nor the two requirement the mens must rea (“of that es follow identification of another object’s at extend least to the direct princi- person”). See Robert modifier, pal al., “of identification.” Were it Funk et otherwise, a could be convicted Elements of Grammar for Writers 62 (“An (MacMillan 1991) adverb, in standard “knowingly us[ing] transfer[ring],” or with- English, except almost a anything modifies authority, out lawful that anything at all noun.”). happened to contain a means of identifica- explained: tion. As one district court end,

In grammatical this observation during conspiracy, If a bank fraud I given parties, is beside point that the envelope hand defendant a sealed ask- well interpreting as as relevant case law (cases her to transfer it and its to similarly structured contents statutes we dis so, below), knowingly another and she she cuss are as does using best understood knowingly envelope has “modify” loosely, the word more transferred the equating “extend,” its my it with as and contents. But she “apply,” words such believes See, e.g., “attach.” envelope United v. X- statement that States contains Inc., Video, Citement a birthday U.S. card when in fact it (1994); card, Liparo 130 L.Ed.2d 372 contains a forged security social ta United n. government surely 424-25 would not con- (1985); tend that she should receive the en- Nofziger, States penalty. hanced - (D.C.Cir.1989). Thus, framing the Godin, 1, 2 F.Supp.2d United States v. question interpreta of statutory terms (D.Me.2007). goes saying And it without tion, 1028A(a)(l)’s we ask far how section requirement that the mens rea also must mens rea requirement “knowingly”— — beyond object reach direct bare reaches the statute. modifying phrase “means” to its first “of identification,” question requires That us to focus on lest the sentence become object, statute’s gibberish: “knowingly using direct “means.” a means” “Means” is modified the prepositional nothing. means simple crucial A rewrite of the statute further prep- But what of second person”? another phrase plausibility “of underscores the of Villanueva- ositional 1028A(a)(l)’s mens re- rea interpretation. Suppose Does section Sotelo’s apply gov- 1028A(a)(l) read, it as well? The to quirement knowingly had “whoever that the stat- certainly is correct ernment of identi- uses another means might apply knowledge requirement ute’s way, fication.” that Written statute object’s preposition- direct first only to the require plausibly proof would most thereby criminalizing “knowing- phrase, al actually knew the defendant the means of us[ing] transfer[ing], possessing], ly belonged identification used to someone happens ... a means identification” else, agreed government counsel Indeed, as the dis- belong another. argument, phrases oral “means out, knows how points sent “an- person” identification of another unambiguously extends draft person’s means of identification” car- other requirement rea various ele- a mens Arg. ry precisely meaning. the same Oral statutory in the text. Dissent- ments True, :33, 7:49-8:02. 5:13— (citing ing Op. prepositional phrase used cumbersome 1546(a)). regard But elegant possessive rather than the more 1028A(a)(l), view—that the the defendant’s form, nothing significance but we see mens extends all requirement statute’s rea syntactic choice. way person” to “of at least —is con- Two factors reinforce our additional govern- equally plausible. Neither ambigu- clusion that section convincing ment nor the dissent offers First, provision next of the same ous. *6 one, reason, nor are of demand- we aware statute, 1028A(a)(2), pen- section increases rea require- that the statute’s mens perpetrated in con- alties theft rather ment halt after “of identification” nection with “[t]errorism offense[s].” person.” In- proceed than “of another 1028A(a)(2). nearly Structured deed, adopts the Model Penal Code as a identically (a)(1), provi- to subsection rule principle of construction a general sion reads: which, con- under absent evidence the Whoever, any in during and relation to requirement mens trary, rea encom- in felony enumerated violation all of an offense. material elements passes transfers, 2332b(g)(5)(B),knowingly pos- 2.02(4) (1985) Model Penal Code sesses, uses, authority, without lawful or (“When pre- law an defining offense per- identification of another means of culpability the kind of is suffi- scribes document son identification false offense, of an cient for the commission shall, punishment pro- in addition to among the distinguishing without material to a felony, be vided for such sentenced thereof, provision ap- shall elements such 5 years. term of imprisonment all the elements ply to material added). government Id. offense, a contrary purpose plainly unless 1028A(a)(2)’sknowl- concedes that section Video, see also X-Citement appears.”); edge requirement apply must to the whole (Stevens, J., at 115 S.Ct. 464 document.” (“[T]he phrase “false identification normal, concurring) commonsense Thus, 8:43-:58, as a Arg. Oral 9:30-:48. of a criminal stat- reading of subsection distance, the mens pure matter of textual ‘knowingly’ the word ute introduced requirement travels farther in subsec- rea modifying to treat that adverb as each (a)(2) pos- government claims in tion than of the offense identified the elements (a)(1). subsection.”). Indeed, under in sible subsection the remainder interpretation, “knowing- knowledge agency that the government’s had a ‘direct or ly” skip phrase must over the contested matter,” substantial’ interest then, person” suddenly “of another government urged a more applica limited influence, resuming apply its to “false tion of the mens requirement. statute’s rea Moreover, identification document.” Ultimately Id. agreeing with Nof had intended section ziger observing that the statute was 1028A(a)(2)’s requirement mens rea “hardly clarity,” a model of id. beyond reach “identification document” to (citation omitted), we found the provision “ falsity, fact of embrace the its it seems ambiguous, stating ‘knowingly’ can likely equally intended a reasonably apply be read to to all ele parallel application regarding phrase offense, ments of the ... including per- “means of identification ‘direct or substantial interest’ element.” precisely language the same at issue son”— (“[T]he 447; Id. at see also id. ... lan 1028A(a)(l). Supreme As the guage ... clearly permits the inference observed, Court has “it is difficult to con- that ‘knowingly’ all attaches to elements of ‘knowingly’ clude that the word modifies offense.”). ... So too here. Text one of the elements [a] subsection[ ] alone cannot resolve this case because Video, but not the other.” X-Citement “knowingly” may “apply all elements of 513 U.S. at 115 S.Ct. 464. And if offense,” id., the ... including require transfers, “knowingly possesses, or uses” ment that the identification belong used upon acts object the direct and its modifi- “another person.” (a)(2), ers in subsection we think it quite Likewise, Chin, in United States v. reasonable to conclude that it could do the (a)(1). (D.C.Cir.1992), F.2d 1275 we same in confronted a subsection statute making a crime for adult Second, we previously found simi- “knowingly intentionally” to “employ, larly ambiguous. structured statutes to be hire, use, persuade, induce, entice, or instance, For in United States v. Nofziger, coerce, under eighteen years of we considered a pro- age to assist avoiding detection ap- hibiting government former employees *7 prehension any for [listed federal drug from lobbying their former agencies. In 861(a)(2). 21 § Again offense].” U.S.C. part, relevant prohibited that statute cov- observing that the statute was a “not mod- ered employees from “knowingly ... with el of drafting,” meticulous we influence, explained the intent to mak[ing] any oral that “[o]ne cannot tell or words written communication ... to the de- from alone whether person’s juvenile partment status agency or in which he served must be known ... ... in or whether it connection suffices any particular with ... using the act of a person matter ... in to which such avoid department or agency ‘knowing[ detection be ] has a direct and and substantial intention- inter- ” 207(c) Chin, (1982) § ].’ est.” 18 981 F.2d at (emphasis U.S.C. 1279 al added). added) (second There, here, and third in principal alterations “[t]he Here, dispute original). case faced with similarly th[e] [was] over the reach am- ” biguous text, of the word ‘knowingly.’ Nofziger, we “cannot tell from 878 alone,” id., F.2d at 444. words Nofziger, While a former whether White House requires advisor convicted under this the defendant to statute for improperly communicating with know that the means of identification he employer, his former argued that gov- belonged used to person, or ernment had to that he had “show[ ] whether it suffices the act of “trans- a the same in a us[ing] gy, point or the Court made fer[ring], possessing], footnote: “knowing- be identification” done means of difficulty Still further arises from the 1028A(a)(l). sure, § To be 18 U.S.C.

ly.” ambiguity frequently which exists con- ultimately held that the statute we in Chin cerning what the words or phrases proof no the defendant knew required What, instance, question modify. minor, but did so used a we was “knowingly” modify does a sentence pur- the statute’s only investigating after sky” from a “blue law criminal statute pro- finding Congress’s intent pose a punishing “knowingly one who sells “fairly minors implied.” as a class tect security permit” without a from the se- Although the government F.2d at 1280. To guilty curities commissioner? be by refusing us follow Chin urges now security a a must seller of without throughout “knowingly” extend doing know that what permit he is 1028A(a)(l), holding Chin’s ignores sale, a he constitutes or must also know resolve the case. text alone failed to thing security, that the he sells is or permit must he also know that he has no Supreme provided The has also Court security to sell the he sells? a mat- As guidance interpret how to stat- useful on grammar ambigu- ter the statute is 1028A(a)(l). utes constructed like section ous; it is not at all clear down how far States, Liparota In United sentence word is “knowingly” L.Ed.2d the Court intended travel —whether it modifies stamp “sells,” with a federal food security,” wrestled or “sells or “sells uses, security permit. without a knowingly read: “[W]hoever transfers, alters, acquires, possesses 424-25 n. (empha- Id. at 105 S.Ct. 2084 added) man- sis W. &A. any cards in coupons authorization Scott, LaFave (1972)); Ar- see also subject to [law]” ner not authorized Law Criminal Andersen LLP v. thur imprisonment. fine L.Ed.2d 2024(b)(1) (1982). parties disputed (“We (2005) recognized re- knowledge require- whether statute’s statutory to similar that the gard language “in manner applied phrase ment to the applies rea at least to the acts that mens alone, Text not authorized [law].” follow, immediately other ele- no explained, provided answer: Court statutory (empha- ments down the chain.” added)). sis explicitly out spelled has not Although required. the mental state at issue in Liparota, As the statutes Chin, “knowingly” Nofziger, the word certainly by use of intended *8 1028A(a)(l) in section before appears “knowingly” require the word some verbs, a object, or series of direct verb respect ele- mental state with to some describing further at least one other term stat- ment of the crime defined [the Here, cases, object. that as those ute], interpretations proffered government and defendant contest parties congressional both accord with And knowledge requirement’s reach. this, Beyond intent to this extent. cases, here, interpreta- as in those “either provide guid- little words themselves ordinary usage.” tion would accord with ac- interpretation ance. Either would 424, 105 471 S.Ct. 2084. Liparota, U.S. ordinary usage. with cord clear Ignoring Supreme Court’s 424, 471 105 2084 Liparota, U.S. S.Ct. cannot finding that text alone resolve stat- added). (third way, the By government analo- structured this emphasis way of utes 1242 (2007). argue Liparota,

and dissent that rein- S.Ct. Find Video, 1028A(a)(l) forced X-Citement demonstrates ing section unambiguous, our knowledge the Court will extend a neighboring circuit reasoned “as a requirement only failing when to do so usage, matter of common ‘knowingly’does could criminalize otherwise innocent con- modify lengthy predicate entire duct—a concern not present here because that follows it.” Id. at Although 1028A(a)(l) requires predicate Circuit, along Eleventh with several dis felony Dissenting offense. See Op. at courts, trict adopted has this interpreta True, 1257-60. the Court has found it tion, see, Hurtado, e.g., United States “particularly appropriate” to extend a (11th Cir.2007) curiam); 508 F.3d 603 (per rea requirement mens when failure to do Godin, United States v. F.Supp.2d 489 so would result in a statute criminalizing (D.Me.2007); United States v. Contreras- nonculpable Andersen, conduct. Arthur Macedas, (D.D.C.2006), 437 F.Supp.2d 69 2129; 544 U.S. at Liparota, other district courts have found section 2084; 471 U.S. at 105 S.Ct. see also 1028A(a)(l) ambiguous and embraced the Staples, 511 U.S. at 114 S.Ct. 1793 defendant’s view. See United States v. (“[We particular care ... taken] to SalazarMontero, F.Supp.2d construing avoid dispense statute to (N.D.Iowa 2007); United States v. Bea doing mens rea where so would ‘criminal- chem, (W.D.Wash. F.Supp.2d ize a range apparently broad innocent 2005). ” conduct.’ (quoting Liparota, 471 U.S. respectfully We 2084)). disagree with Montejo. 105 S.Ct. But the Court has Although the court correctly there never held that con- avoiding such a result is cluded that the only Thus, “knowingly” adverb reason to do so. modi- while only “transfers, fies the verbs presumption possesses, “[t]he favor of scienter re- quires uses,” (alteration a court to [and] read into a see 442 F.3d at 215 that mens rea necessary original), which is sepa- grammatical observation, wrongful rate above, conduct from in- explained ‘otherwise as fails to key resolve the conduct,’ nocent Carter v. United question, namely, how far does the stat- requirement ute’s mens rea extend? Mon- (2000) added) L.Ed.2d 203 tejo’s observation “knowingly” must Video, X-Citement 513 U.S. at “adjacent modifies, rest to the words it as 464), may courts extend mens close as it get” provides can help no either. rea requirement ordinary when tools of Id. at 216. As one district interpret- court statutory interpretation text, structure, 1028A(a)(l) observed, — “‘know- purpose, history compel ingly’ placed has been — as close possible that result. Accordingly, Liparota’s con- entire, to the predicate: indivisible ‘trans- cern with criminalizing nonculpable con- fers, uses, possesses, or without lawful au- duct has no bearing on the threshold issue thority, a means of identification of anoth- before us—whether section Salazar-Montero, person.’” er at 1090. ambiguous. Moreover, Liparota’s observation that *9 In answering 1028A(a)(l) question that in statutes structured the affir like are mative, we acknowledge, ambiguous govern the grammar,” “[a]s matter of ment emphasizes, that the Fourth 471 Circuit U.S. 425 n. fatally reached the opposite conclusion in Montejo’s United undermines on reliance “com- Cir.2006), (4th Montejo, States v. usage.” mon Indeed, F.3d at 215. — denied, —, rt. 127 Fourth expressly Circuit acknowledged ce omitted)). quotation found both and internal marks Liparota in the Court that demonstrates, that As title the statute con- scope of the term “interpretation^] of i.e., “theft,” taking cerns “the felonious with common in accord ‘knowingly’ removing personal property intent of with Id. at 216. usage.” deprive rightful to owner it. Web- III. Third New ster’s International Dictio- (1993) nary added); see 1028A(a)(l) am- Having found section (8th Dictionary also ed. Law in the Black’s seek statuto- biguous, guidance “we 2004) (“The removing felonious taking and structure, history, legislative ry relevant personal with the property another’s expressed congressional purposes [and] it.”). intent of depriving true owner Light & v. Fla. Power Co. the [statute].” Villanueva-Sotelo, having Yet had no idea Lorion, 729, 737, 470 U.S. registration forged that his alien number (1985). According to 84 L.Ed.2d all, belonged anyone possibly couldn’t history dem- government, legislative intent deprive had the that intended to “Congress onstrates True, her identity. of his or Villa- knowing possession of criminalize guilty nueva-Sotelo had a mind—he know- documents, identity even if the fraudulent ingly presented permanent a fake resident knowledge specific lacked the defendants police pled card to he D.C. officers—but they possessed a real means guilty to in the in- precisely charge Appellant’s Opening of identification.” being pun- count dictment’s second and is See Dissent- agrees. Br. 18. The dissent accordingly. ished Reading legislative at 1254. ing Op. ar-

history differently, Villanueva-Sotelo Judge Friedman’s with the colloquy target intended gues supra at reveals prosecutor, see perpe- theft and the thieves who just government’s interpreta- how far the it, rather create sentenc- trate than to on departs from statute’s focus individuals who use ing enhancement for in the government argued “theft.” theAs identifying belong- information fraudulent argu- at oral district court and reiterated ing purely happenstance someone here, pick ment a defendant could a series we with Again, agree else. Villanueva- the air two of numbers out of and win Sotelo. years prison extra if those numbers assigned happened to coincide an title: begin with 1028A’s We number, yet escape punish^ identification “[aggravated identity theft.” See Almen 1028A(a)(l) he ment had under section 523 U.S. darez-Torres string different of random picked slightly 224, 234, 118 S.Ct. Tr. at That’s Hr’g numbers. See (“[T]he (1998) title of statute and not Judge theft. Friedman could heading of a section are tools available position with con- square government’s of a about mean the resolution doubt intent, nor can gressional we. (citation and internal ing of a statute.” omitted)); That intended marks see also Pa. quotation out Yeskey, single thieves—in Dep’t Corrections en- 215 traditional sense word—for L.Ed.2d (“For sup- (1998) hanced finds additional purposes, punishment ti interpretive [the history. port the statute’s light shed[s] use on [it] tle when is] (second re- “many identity thieves phrase.” Frustrated ambiguous word or some (citation imprisonment pro- ceive terms of original) short and third alterations *10 bation,” 108-528, (2004), 4-5, H.R.Rep. No. at 3 at Id. 2004 U.S.C.C.A.N. at The 781. reprinted in 2004 U.S.C.C.A.N. report then a string lists of cases in which Congress passed section identity convicted thieves escaped with rel- part Identity Penalty Theft En- sentences, atively light all of which in- Act, 108-275, hancement Pub.L. No. who, volved defendants unlike Villanueva- (2004). Judiciary Stat. 831 The House Sotelo, they knew the identification used Report accompanying Committee the Act belonged Focusing to another. on im- repeatedly Congress’s emphasizes intent context, migration report mentions target punish “identity thieves” who case which a Mexican resident obtained acts, “steal identities to commit terrorist by using federal benefits “the name and violations, offenses, immigration firearms Security Social number of his former H.R.Rep. other serious crimes.” No. brother-in-law, a U.S. citizen.” Id. at 108-528, at U.S.C.C.A.N. 780 2004 examples U.S.C.C.A.N. 781. Other added). (emphases report The further ex- cited include a woman who used her hus- plains: ‘identity “The terms theft’ and security band’s social number to obtain ‘identity types fraud’ refer to all of crimes benefits, disability a health club worker in which wrongfully someone obtains and who used a “skimmer” to obtain credit person’s uses another personal data in members, card data from the club’s and a way some that involves fraud deception, employee bank who accessed the bank’s typically for economic or other in- gain, computer files obtain customer account cluding immigration benefits.” Id. at information. Id. at 2004 U.S.C.C.A.N. Although U.S.C.C.A.N. at 780. wheth- In each of examples, these er a imagines string who of ran- thief knew the stolen information belonged “wrongfully dom numbers has obtainfed]” person indeed, to another that was the — personal debatable, data very essence of the crime. 1028A(a)(l)’s legislative history demon- The floor debate reveals a similar em- strates that at for purposes least of this statute, phasis Representative on theft. Sensen- already has answered brenner, question Judiciary the House negative. in the The House Committee Chair Report detail, and the bill’s floor manager, describes theft in ex- providing plained, legislation series of “This will examples prose- of how one allow “wrongfully cutors to identify identity obtains” another per- thieves who steal sonal data. an report identity, first describes how sometimes hundreds or even “identity identities, operate, explaining thieves” thousands of purposes they committing one or more crimes.” 150 Cong. (daily Rec. H4809 ed. June personal

obtain!] individuals’ informa- 2004) (statement Sensenbrenner). Rep. tion for only through misuse not “dump- Representative Carter, diving,” ster but Act’s author through accessing also sponsor, and lead explained information likewise originally that was collected the legislation for an would purpose. authorized “facilitate the prose- The infor- cution mation is of criminals who by employees accessed either steal identities in felonies,” of the company or of a order to commit party recounting third is authorized to case in access the accounts in which a “Texas driver’s license business, the normal course pleaded guilty bureau clerk selling ID outside individuals who hack into illegal immigrants com- cards to using stolen puters or paperwork likely steal to con- immigration information from papers.” personal (statement tain information. Carter). Id. at H4810 Rep. *11 h like did statute to reac conduct Villa legislative the record theft” At point no in nueva-Sotelo’s. much as allude to a situation anyone so obtain[ed]” “wrongfully which a defendant Next, pointing to some of the same un- information person’s personal another above, history legislative recounted the intent. unwittingly, and without knowingly, and dissent contend that government desired it easier Congress to make for contrary position— In the support of identity prosecutors “to convict thieves” thieves, just Congress targeted not punishments and to enhance their accord- using a anyone false identification but also 108-528, H.R.Rep. No. at ingly. another happening belong to document 780; Dissenting Op. at at U.S.C.C.A.N. to the government directs us person —the begs ques- the agree, 1255. We but that Re- from the House following language did Congress tion before us: consider a port: like Villanueva-Sotelo to be an defendant provide 18 to amends Title This section subject identity prosecution thief under mandatory penalty for a consecutive legislative history statute? All of the this years any individ- for enhancement presupposes the an- government the cites transfers, knowingly possesses, ual who question. swer to means of or uses the identification Finally, government urges us to dis- to commit person order another “brief’ regard legislative discussion ( ... predicate offense serious Federal 1028A(a)(l), Appel- section surrounding violations, immigration false including Br. to look instead Opening lant’s offenses, crimes, citizenship firearms 1028(a)(7), nearby provision crimes). serious and other Congress at time amended same 108-528, 10, 2004 at H.R.Rep. No. 1028A(a)(l). See 18 passed section Supreme at 780. But as U.S.C.C.A.N. (“Whoever 1028(a)(7) knowingly ... similarly confronting Court stated when transfers, uses, without law- possesses, or fail history, unilluminating legislative “[w]e authority, a of identification of ful means sentence, merely how this which see commit, with intent to statute, any offers parrots the terms of with, abet, any to aid or in connection terms enlightenment as to what those activity viola- unlawful that constitutes n. at 430-31 Liparota, mean.” punished be tion of Federal law shall 2084. ”). plen- find Because we provided.... history evincing ty legislative in section 1028A’s long examples As list of for the theft, regarding intent revealing congressional focus on intentional statute’s to look colleague we see little reason dissenting provision, our government and In guidance. statutes highlight to other argue wished event, surround- legislative iden- discussion only egregious examples most 1028(a)(7) govern- offers tity limiting ing the statute’s theft without amended section Dissenting help. Congress no examples. ment reach to those 1028(a)(7) of identi- prosecution to ease carry more Op. point at 1253. This would per- “another ty thieves who intend to use weight the list the evidence were (note the use means of identification” congressional intent. But it isn’t. View- son’s form, supra 1239- possessive the stat- see the list combination 40) yet felony, as a to commit but ute’s title and the record H.R.Rep. No. 108- whole, actually done so. See think it clear that we “aggravated its U.S.C.C.A.N. never intended *12 nothing tells us about whether con- Even if we This harbored doubt about is, duct like Villanueva-Sotelo’s amounts this —that were we unable to “an find “identity place. unambiguous theft” the first More- intent on part of Con over, according Report, gress” to the House would “turn to the rule of leni —we targeted knowing- ty those “who dispute.” amendment to resolve the United States West, (D.C.Cir. ly operations identity- of an facilitate the 393 F.3d 2005); by stealing, hacking, States, ring theft other- see also Moskal v. United 103, 108, in an gathering way wise unauthorized (1990) (“[W]e identification, means of people’s always other but L.Ed.2d 449 they may deny specific lenity who had the reserved for those situations in particular in a engage intent fraud which a reasonable doubt persists about a 11, 2004 scope scheme.” Id. at U.S.C.C.A.N. at statute’s intended even after resort structure, 786. Far removed from the issue we face to ‘the language legislative and here, that scenario underscores extent history, motivating policies’ of the Congress to which intended to single States, out statute.” (quoting v. United Bifulco punish knowingly 381, 387, those who steal oth- 447 U.S. 100 S.Ct. (1980))). ers’ identities. Although L.Ed.2d 205 rule “[t]he lenity is not invoked a grammatical short, In there is a salient difference possibility” and “does not if apply the am between theft and accidental misappropri biguous reading relied on an implausible is surely ation. While Villanueva-Sotelo mis reading congressional purpose,” appropriated someone else’s registra alien States, 308, 316, Caron v. United 524 U.S. number, no evidence shows he stole (1998), 118 S.Ct. in any meaningful sense. As the first reading defendant’s is quite plausible. interpret district court to this statute ob Thus, legislative even history failed served, concedes, government and as the to resolve the statute’s ambiguity, the rule “it is odd—and borders on the absurd —to lenity would forbid us from “inter call what [the defendant] did ‘theft.’” preting] a federal criminal statute so as to Montejo, United States 353 F.Supp.2d penalty increase the that it places on an (E.D.Va.2005), aff'd, 213; 442 F.3d individual when interpretation such an can see also No Need to ID Show an Theft L.J., be based on guess no more than a as to Conviction, ID 30 Nat’l Dec. Theft what Congress intended.” Ladner v. 2007, at 14 (describing the Eleventh Cir 169, 178, United 358 U.S. Hurtado, cuit’s decision United States v. (1958). 209, 3 L.Ed.2d 199 603). But precisely “theft” is what targeted when it passed IV. 1028A(a)(l). Because in tended to express “the moral condemna We have several additional reactions to community,” tion of the with, States v. begin dissent. To its view of the Bass, 30 statute is entirely clear. The dissent (1971),by L.Ed.2d 488 enhancing penalties first agree seems identities, for thieves who steal we hold ambiguous, relying is legis- on 1028A(a)(l)’s that section rea history mens re lative to discern the statute’s quirement extends to the “[aggravated meaning. Dissenting Op. See at 1251-55. identity theft” defining Elsewhere, however, statute’s element— the dissent concludes that the means of identification clear, used be the statute’s text is making longs person. to another resort history congres- unnecessary. support dissent claim that “a See id. cites its intent sional primary of the statute was to” purpose 1240-41. closely ensure punishment “that the more grafting accuses us The dissent crime fits harm the causes its victim.” theft definition of onto common-law Dissenting Op. 1254 & n. 1254. is required “con when what *13 concession, however, merely This rein ... inference of the statute and struction lenity the to forces the need for rule of Id. at Congress.” of of the intent any remaining ambiguities, resolve 605, 114 at Staples, 511 U.S. S.Ct. (quoting text, structure, history “where fail to and 1793). indicates, see But as our discussion the position establish that Government’s just done at have what supra we correct[,] the rule unambiguously apply we the urges: construed the dissent lenity in ambiguity of and resolve the [the Congress’s using intent inferred and favor.” States v. defendant’s in “theft” —as found everyday definition of Granderson, 39, 54, 114 throughout its 1028A’s title and section 1259, 127 (1994). L.Ed.2d 611 tool history among one legislative but—as in dissent series of cases others. cites engaged which in otherwise defendants points next to The dissent same culpable required were to “ascer- conduct do, see Report language supra we House at peril tain whether [their] [their actions] 1243-44, namely that terms ‘iden- “[t]he the inhibition of the stat- c[a]me[ ] within refer ‘identity theft’ and fraud’ to all tity Dissenting Op. ute.” at 1261 in wrong- of crimes someone types which Freed, United States and fully obtains uses (1971)). L.Ed.2d Un- way that personal data involves some cases, however, like here we have those No. deception.” H.R.Rep. fraud or 108- limit Congress evidence that intended to 4, 2004 Ac- U.S.C.C.A.N. 1028A(a)(l) theft, section to and we are dissent, sentence, this cording par- to to interpret light bound the statute fraud,” “identity ticularly its reference to expressed that intent. “identity that ‘theft’ must “be means Next, points Dissenting Op. at 1253. the dissent to 18 U.S.C. generically.” read 1546(a), provides “[w]hoever record’s overwhelm- which Given the “theft,” registra- ... ... alien knowingly number of to uses ing [an] references be “thieves,” knowing tion card ... it “stealing,” plus receipt statute’s title forged fined under this Judiciary many and the Committee’s be [s]hall title added). theft, imprisoned.” Id. examples knowing citations to Reading pari “identity this statute in materia report’s passing references 1028A(a)(l), which no sim- hardly a conclusion that contains support fraud” require- clearly impose repetition knowledge ilar of the intended to two ment, on a years punishment defen- the dissent concludes additional a number that could intended happens pick dant who 1028A(a)(l) that the belong require showing else turns out to to someone rather case, any In the means of identification assigned one no one. defendant knew than dissent, person. See Dis- prepared belonged are to used to another unlike we n. senting at 1256 & 12. Even assum- acknowledge although weight Op. the vast applies ing pari in- materia doctrine legislative history supports our 1546(a) here, are cut arguably some bits of sections terpretation, in tandem: easily when read way namely, other the evidence harmonized — registra- a false alien defendants who use Code. As for the dissent’s observation that 1546(a) punished are under sections number the for- 1028A share the same “[cjharacterization (as matter, Villanueva-Sotelo), subject mer statute was object or purpose important is more than while those belongs who know number subject characterization of matter in deter- to someone else receive two additional mining whether different statutes are years under the latter. closely enough to justify interpret- related event, In we doubt whether in light one in 2B the other.” Singer, pari applies materia to these statutes. As Here, supra, § 51:3. the dissent claims very our dissenting treatise cited that in passing Identity Penalty Theft colleague explains, courts often ask four Act, Enhancement Congress’s “central questions deciding when if statutes are concern damage [was] the caused *14 enough justify reading similar them in wrongful person’s use of another identity.” pari materia. The to all answers four Dissenting Op. at 1254n. 9. That purpose, questions against applying counsel the can goes it saying, without differs from the one First, on here. were “the two statutes ... 1546(a) that animated section —a contained in the legislative same act”? 2B Congress passed first in its current form Statutory J. Singer, Norman Sutherland 1948, long “identity before theft” en- (6th § Supp. 51:3 ed. 2000 & Construction tered the criminal lexicon or captured Con- 2007-2008). Here, Second, they weren’t. gress’s attention a half-century later. See do the require two statutes “the same United Campos-Serrano, States v. proof’? Here, elements of Id. as the dis (7th Cir.1970) F.2d (recounting emphasizes, they sent don’t. See Dissent legislative history 1546); § of 18 U.S.C. ing Op. Third, at 1257. are the penalties Identity see also Assumption Theft and the same for both 2B statutes? Singer, Deterrence Act of Pub.L. No. 105- supra, Here, § they’re 51:3. not. (1998) And 112 Stat. 3007 (amending 18 finally, were “obviously statutes two 1028 to include a section on iden- theft). designed to purpose serve the same and tity objective”? Id. Answering ques this last greater Of relevance to this case is a requires tion explanation. bit more As related canon of statutory construction: points out, 1028A(c)(7), the dissent section “general principle ... that when ‘Con which lists many predicate offenses gress particular includes language in one triggering the aggravated identity theft a statute but omits it in another statute, incorporates by reference section Act, the same it generally is 1546(a), and “posses both statutes involve presumed that Congress intentionally acts sion aof false means of identification.” purposely in the disparate inclusion or Dissenting Op. at 1257 n. 12. True Coal, exclusion.’ S0igmon 534 U.S. at enough, but section 1028A references as added) 122 S.Ct. 941 (emphasis predicate myriad offenses a of other feder Russello United al subject statutes whose matter includes (1983)). As disparate such topics immigration, so above, we supra 1239-40, noted see security, cial public embezzlement of 1028A(a)(2) subsection terrorism of —the funds, visas, and firearms. See 18 U.S.C. provision fense it a crime know —makes 1028A(c) (listing predicate felony of ingly to use “a means of identification of fenses). thinkWe it stretches pari the in or a false identification materia beyond document,” canon apply reason to it to added), id. (emphasis while (a)(1) such a wide swath of the United States general subsection pro- offense —the Congress passed Identity when “false identification mentions vision-—-never years Enhancement Act two Congress Penalty Theft parroted Had documents].” (a)(2)’s one victim’s showing doc- how social “false identification subsection earlier — (a)(1), security eighty-one number was used in subsection Villa- language ument” plain. country, But across the see people be different guilt nueva-Sotelo’s would Dissenting at 1255-56 n. language Op. for the the dis- Congress omitted really sent could have two-year offense enhancement wonders “general” five-year intended to those who punish it for the “terror- individuals including while they a real num- decision that knew had stolen ism offense” enhancement —a more than those who given Congress’s severely ber did not. makes eminent sense question yes. the terrorist The short answer to that is heightened concern with country. nothing see unfathomable about Con- H.R.Rep. threat our We facing morally out certain gress singling culpable 2004 U.S.C.C.A.N. No. punishment, organiza- that “terrorist conduct enhanced and sec- (explaining 1028A(a)(l)’s text, title, turn to stolen identities tion increasingly tions history did precisely law reveal that to hide themselves from enforce- ment”). if the again, that. And even dissent’s no reason read subsec- We see (a)(2)’s (a)(1) plausible, hardly reading inescap- into it is subsection language *15 it able—which leads us back to rule of clearly placed could Congress when lenity. Congress and if considers When there itself. like described eases the one “dueling concluding After canons article, may it well decide to extend news might fail to re- statutory construction” “[aggravated identity theft” statute’s ambiguity, the solve the inherent statute’s reach, penalty or to still fur- enhance sense” as an appeals dissent to “common Congress, ther. But that’s a decision for Dissenting Op. at 1257. interpretive aide. this court. off, just as First is no duel: we there the dissent cites is explained, the canon V. supports our inter-

either or inapplicable point, although to the pretation. More First, final we doubt that points. Two certainly plays a role common sense 1028A(a)(l) interpretation of section our construction, statutory common sense does awith burden government will saddle the engaging thorny not excuse us from examples In each of the it cannot meet. determining Congress what intend- task of cited, Congress supra at 1244-45—as see here, in when a statute. And passed ed it identity in most run-of-the-mill theft event, Judge more to any to return once proving the defendant knew cases— common sense hypothetical, Friedman’s belonged to another stolen identification ought us not receive tells that a defendant major obstacle, no person present should of incarceration for years two additional often be knowledge as such will demon- than picking random number rather one circumstances the case. strated course, unless, Congress has another — instance, For when an individual obtains Put another made clear that he should. by trolling through personal information way, it’s common sense conclude garbage improperly or the victim’s identity that conviction under an theft stat- perpetrator viewing to which files requires ute actual theft. access, obviously knows the gains he infor- else. And belongs mation to someone Finally, troubling news reproducing credit, an thief establishes was when report from 2006—which not before transactions, Act, or Identity Penalty secures benefits Theft conducts Enhancement name, the crime 108-275, 2(a), (IT- in the victim’s would § Pub.L. 118 Stat. 831 if the information at issue PEA): make little sense sense, one. In that belonged to no this Whoever, during and in relation to Chin, from in which we found case differs felony violation enumerated in subsec- “implausible would have (c), transfers, knowingly tion possesses, placed prosecution impos- on the the often uses, authority, without lawful proving, beyond sible burden of a reason- means of identification of another doubt, that a able defendant knew the shall, in punishment addition to the pro- youth he eighteen.” enticed was under felony, vided for such be sentenced to a Chin, 981 F.2d at if experience 1280. And imprisonment term of of 2 years. proves prediction wrong our and the bur- added).1 § U.S.C. onerous, government den too is free to majority interprets language this ask to limit the statute’s knowl- require that the Government prove that edge requirement. the defendant knew “the ‘means of identifi- Second, above, interpreta- noted our ‘transferred], cation’ he possesse[d], or tion does not mean that Villanueva-Sotelo actually belonged use[d]’ per- ‘another escapes punishment crime, for his for he ” Maj. Op. son!.]’ at 1236 (quoting 18 1546(a), pled guilty violating 18 U.S.C. 1028A(a)(l)) (alterations in ma-

which provides: knowingly “Whoever jority opinion). I Because believe the ma- uses, use, obtains, attempts possesses, jority language, misreads this I respectful- accepts, or registra- receives ... alien [an] ly dissent. receipt card ... knowing it to be forged ... be fined [s]hall under this title I. imprisoned.” Unlike *16 1028A(a)(l), that unambiguously The dispute. facts are not in Appellee criminalizes Villanueva-Sotelo’s conduct. Villanueva-Sotelo is a Mexican national We affirm. who has entered the United illegally States at least three times and twice been re-

So ordered. 5, turned to August 2006, Mexico.2 On he KAREN LeCRAFT HENDERSON with, charged alia, was arrested and inter Circuit Judge, dissenting: aggravated identity theft under section At issue this case is the proper presented inter- after he a false Per- pretation of following (Card)3 language of the manent Resident Card to an offi- Among felony 1. violations enumerated in 2. Villanueva-Sotelo re-entered the United (c) "chapter subsection violation of again 75 States and Washington was arrested in visas).” (relating passports and pleaded guilty 18 U.S.C. State. He to unauthorized re- 1028A(c)(7). § pleaded (8 entry 1326), Villanueva-Sotelo of a § removed alien U.S.C. guilty (7). violating possession subsection immigration See of false documents infra pp. (18 1546(a)) 1256-57. § possession U.S.C. and of five or more false identification documents with 15, 1990, (18 2. On 1028(a)(3)); June Villanueva-Sotelo was § intent to transfer U.S.C. he Oroville, Washington arrested in shoplift- was sentenced to two months’ incarceration. ing. pleaded guilty 23, He September misdemeanor theft again On 1991 he was ordered days jail. and was July sentenced to 10 deported On to Mexico. See id. 3, 1990, immigration judge a United States Card, ordered Villanueva-Sotelo's removal from the commonly 3.Until 2003 the known aas card,” United deported "green States and he was to Mexico. Immigration was issued Support Guilty (INS) See Factual Proffer in Plea and Naturalization Service of the U.S.

1251 appealed then count.4 The Government Department Police Metropolitan cer of the affirms the (MPD) today majority See dis- District of Columbia. and in the bore Although the Card Indictment missal of Count 3. photograph, name

Villanueva-Sotelo’s as- registration number it contained II. Villanueva-So- person. to another signed false; knowing the Card was telo admits circuits have inter At least sister two however, he not know contends that did he 1028A(a)(l)’s language preted section to an- belonged number registration that the de requiring unambiguously Govern- part, For its person. other false “means of fendant know cannot prove ment concedes to another. United belongs identification” be- knew the number Villanueva-Sotelo (11th 603, Hurtado, 508 F.3d 610 States Br. 5. person. See Gov’t longed to another Cir.2007); Montejo, 442 States v. United May Government On — (4th denied, Cir.), 213, cert. F.3d 217 unlawful charged Villanueva-Sotelo 366, U.S. —, L.Ed.2d 138 127 S.Ct. (8 alien U.S.C. a removed re-entry of (2006). has followed the A circuit third (Count 1326(a) (b)(1)) 1), possession § rationale without addition Fourth Circuit’s (18 U.S.C. immigration documents of false Hines, analysis. al United States 2) 1546(a)) (Count iden- aggravated (8th Cir.), 1038, de cert. F.3d 1039-40 (Count 1028A(a)(l)) (18 tity theft — nied, —, 3). guilty pleaded Villanueva-Sotelo (2007). majority’s The inter L.Ed.2d 170 challenged counts but the first two a disfavored cir causes pretation therefore count, arguing theft aggravated Philip States v. split. cuit 1028A(a)(l) the Govern- that under Inc., F.3d Morris USA that he to establish required was ment (D.C.Cir.) (“[W]e creating avoid circuit contained presented he knew the Card denied, ”), .... cert. splits possible when person.” number “of registration 163 L.Ed.2d agreed and dismissed court district (2005).5 disagreement with Its identity theft aggravated Count Contreras-Macedas, F.Supp.2d Since when Department of Justice. (D.D.C.2006). were transferred to many INS functions *17 Department Se- newly-created of Homeland Immigration Citizenship and the U.S. curity, also dis- level there is 5. At the court district (USCIS) began issuing See 6 them. Service of Maine first con- agreement. The District 271(b); § 1028A(a)(l)'s 1103. The Card 8 U.S.C. mens rea cluded that section name, includes, alia, photo- the alien's person” inter applies "of another requirement to birth, country origin, expira- of graph, date of submitting jury question (by to the wheth- date, registration fingerprint an alien of knew her false means er the defendant See, else), by the USCIS. assigned to him belonged number to someone identification 1201, 1304(d) 1202(a)-(b), 1, Godin, §§ e.g., F.Supp.2d 8 U.S.C. 3 476 v. United States visas); immigrant 8 C.F.R. (requirements (D.Me.2007); field it then reversed ("Application of record for creation 264.5 Unit- Circuit's rationale. adopted the Fourth residence”). 118, Godin, permanent F.Supp.2d of 119 v. 489 ed States (D.Me.2007). district courts have Other Compare conclusions. Unit- disagreed reached thereby with different court 4. district The 1156, Beachem, F.Supp.2d 399 judge ed States v. decision of another district the earlier (W.D.Wa.2005) (§ 1028A(a)(l)’s knowl- require the 1158 does not that section element), requirement applies to each edge prove that "the identification Government Salazar-Montero, CRNo. v. be- and United States documents on the fraudulent numbers * 3102096, 13 WL 2007 person.” United States v. longed to an actual 1252 two-fold: it first finds the

other circuits is vated theft because his “accidental ambiguous, Maj. Op. see at 1237- language misappropriation,” Maj. Op. at of 43; ambiguity construes the in the then another’s identification number —the “acci- Maj. Op. at 1246-47. defendant’s favor. dent,” assume, I relating ignorance to his Fourth, Eighth and Eleventh Even of the fact that the identification he knows incorrectly language view the as Circuits assigned to be false person— unambiguous,6 I agree nonetheless Maj. would not constitute “theft.” Op. reading language their the Gov- (“As demonstrates, at 1243 title th[e] ernment need not establish the defendant ‘theft,’ i.e., statute concerns ‘the felonious knew the false means of identification is taking and removing personal property person.” “of another deprive rightful with intent to owner ”it’ Webster’s Third New International majority provi- Because the views the DiCtionary (1993) added); ambiguous, beyond sion as it looks Dictionary (8th see also Blaoií’s Law meaning. words discern their It then “ 2004) (‘The taking ed. felonious and remov- structure, statutory concludes that ‘the ing of personal property another’s with the relevant history, congres- [and] it.’). intent depriving the true owner of purposes expressed sional in the [stat- ” According majority, to the the fact that the all support applying knowledge ute]’ title uses the word “theft” shows that the requirement every element of section single intended “to out 1028A(a)(l). thieves— Maj. Op. at 1242-43 in the traditional sense of the word.” Id. Lorion, Light Fla. Power & Co. v. determining But required the mens rea 84 L.Ed.2d 643 (1985)) (alterations commit a federal offense does not neces- majority opinion). sarily finding It entail places great emphasis first “common-law” on the word “ “theft” in match. the ITPEA’s title. Instead it Apparently involves the ‘construc- majority believes that tion of Villanueva-So- the statute and ... inference of the telo’s conduct does not constitute aggra- Congress.’” intent of Staples v. United (N.D.Iowa Oct.25, 2007) (same), Chin, (D.C.Cir. with United States 981 F.2d Montejo, F.Supp.2d 1992) States v. (finding similarly structured criminal (E.D.Va.2005) (§ 1028A(a)(l)'s knowledge re ambiguous: "One cannot tell from the quirement modify per does not “of another person’s juvenile words alone whether son”), United States v. Contreras-Mace ”), denied, status must be known .... cert. das, (D.D.C.2006) F.Supp.2d (same). (1993); Mofziger, States 442, 447(D.C.Cir.l989) (finding similarly Supreme The decisions Court as well " ambiguous. structured criminal statute ‘is similarly our Circuit have held that way.' (quot statute can be read either i.e., worded criminal statutes con- statutes — *18 O’Brien, 850, United States v. taining "knowingly” the word followed (10th Cir.1982)); 852 Arthur Andersen verbs, cf. verb or object series of a direct and at States, 696, 705, LLP v. United 544 U.S. 125 prepositional phrase describing least one that 2129, (2005) ("We S.Ct. 161 L.Ed.2d 1008 object ambiguous. Liparota See v. Unit- —are recognized regard with to similar States, statu 419, 424, 7, ed 471 U.S. 425 n. 105 tory language ap that the rea 2084, mens at least (1985) ("Either S.Ct. follow, plies immediately to the acts that interpretation ordinary would accord with us- statutory not to other age. elements down the grammar 'As a matter of the statute is chain.”); ambiguous; McCreary Offner, see also v. it is not at all clear how 172 far down 76, (D.C.Cir. 1999) the F.3d ‘knowingly’ (noting sentence the word 82-83 is intended other (quoting differing interpretations to travel ....'" W. LaFave & A. circuits’ of statute Scott, (1972)); Criminal Law 27 ambiguous). manifest statute is

1253 another crim- gain or to facilitate economic 114 U.S. 511 added)). (1994) The activity.” (emphasis (quoting United inal L.Ed.2d 608 128 250, 253, Balint, “identity theft” synonymizing Congress’s v. States (1922)) origi- (ellipsis a defini- “identity L.Ed. 604 fraud” —followed 66 and nal); 471 Liparota, also U.S. “that types” see that “all of crime includes (1985) 85 L.Ed.2d not deception” fraud or involve[] —could a crimi- (“The of of the elements definition identity “theft” is meant clearer that make legislature, to entrusted nal offense is generically.7 be read to crimes, of federal the case particularly in Re- majority dismisses House statute.”) (cit- creatures of solely which are of the breadth of “identi- discussion port’s (7 Hudson, 11 States ing United did by positing that ty theft” (1812)). Crunch) Here the 3 L.Ed. ran- “imagining] string of not consider discussing clear—in made Congress has way of “wrongful[ ]” be a numbers” to dom limited majority as title the reads the same person’s using another possessing and/or identity “theft” theft —that common-law to Maj. atOp. “means of identification.” majori- than the offense a much broader is added). this support To (emphasis Judiciary House Commit- ty prefers. The notion, a section of majority points ex- ITPEA accompanying the Report tee several Report House includes and ‘identity terms plains “the theft’ commonly used techniques of examples crimes all types refer to ‘identity fraud’ of “ ” ‘dumpster diving,’ identity (e.g., theft obtains and wrongfully in which someone ” “ computers,’ ‘hacking] into data in personal uses “ likely contain ‘stealing] paperwork decep- or way involves some fraud information,’ (quoting id. personal tion, gain, or other typically for economic 108-528, 4-5, 2004 at H.R.Rep. No. H.R.Rep. benefits.” including immigration 780-781)) “a lists U.S.C.C.A.N. 4, 2004 No. U.S.C.C.A.N. identity string cases which convicted added) (House of (2004) Re- (emphases relatively light sen- escaped with (statement thieves Rep. of at 25 see also id. port); tences, involved all of defendants which Coble) fraud identity (“Identity theft and Villanueva-Sotelo, who, knew unlike types refer to all terms are used of to anoth- they belonged used identification personal an individual’s crimes which highlights majority misused, Finally, Id. er.” typically data financial context, Moreover, depending on the we were re- assuming arguendo Even meaning than the a broader "theft” often identity theft has aggravated quired to harmonize See, Montejo, theft, e.g., majori- definition. common-law could not with common-law (“While ‘theft’ is a F.Supp.2d at 654 common ty's view be inconsistent with 'larceny,' popular identified with (defining term often “theft” Maj. Op. at 1243 law? See " an umbrella be] 'theft' also removing [can the word taking 'the felonious wrongful forms which other deprive term includes personal property intent McLaughlin City Can- added) (in- ”) taking.” rightful of it’ owner ton, Miss., n. 18 F.Supp. omitted). majority’s quotations In ternal (S.D.Miss.1995))); view, guilty aggravat- be could defendant New Webster's Third (including, in addition having despite "take[en]” Dictionary ed theft World “theft”— definition property” common-law "personal another's “remov[ed]” , proper- majority "taking of which identification long knows the false cites— so as he *19 unlawfully”); Black’s Law identity ty Dictionary belongs Nor does another. theft, 1999) (7th (noting that addition ed. the latter’s “deprive” the owner of thief definition, also mean can anything, its common-law he means of identification—-if stealing.”). “[b]roadly, any instance act or of identity. "shares” the owner’s i.e., knowing two statements from floor debate to use of an false telo’s — the same effect. Id. at 1244 150 identification without also knowing the 2004) false (daily belongs identification to another Cong. per- Rec. H4809 ed. June (statement Sensenbrenner) son —did not make the “worst case” list Rep (noting of does not mean that Villanueva-Sotelo’s “identity thieves” “sometimes [steal] conduct is not covered identities”); hundreds or even thousands of 1028A(a)(l).8 (statement Carter) id. at Rep. H4810 of (noting case wherein li- “Texas driver’s Indeed, I read Report the House pleaded guilty cense bureau clerk to sell- expressly manifest did ing ID illegal immigrants using cards to consider Villanueva-Sotelo’s conduct cov- stolen immigration pa- information from ered. A primary purpose of the pers”)). To make strongest argument punishment was to increase the for a de- ITPEA, however, for the enactment of the fendant who “wrongfully obtains and uses Report the drafters of the House under- data,” personal another H.R. standably highlighted the most notorious Rep. No 108-528 at 2004 U.S.C.C.A.N. cases in which defendants had received added), at pun- so that “light” punishment under then-existing ishment closely more fits the harm the law. That a crime like Villanueva-So- crime causes its victim.9 In concluding Indeed, Report years, the House fails to mention last $5 with about of billion that out- theft, identity e.g., other common forms of-pocket, of unrecovered losses to consum- parent misappropriating ers.”); identity, a child’s see ("Identity id. at 44 theft victims now Leland, e.g., Identity John Is spend average an of 600 hours—often over a Thief Often Photo, Family Found in Times, N.Y. Nov. period years recovering of from the crime. — (describing parent-child identity at A 1 $1,400 Being average a victim costs an of commonplace). fraud as ....”); (state- out-of-pocket expenses id. at 51 Schiff) Rep. (noting ment of purpose of (statement Cong. 9. See 150 Rec. H4811 of protect good ITPEA is “to credit and Schiff) ("A Rep. identity usually victim of theft reputation Americans”). hard-working of spends year working and a half to restore identity good his or her name.... The The also enacted the ITPEA in sentencing practice current structure and penalty order to increase the for a terrorist flawed impact because it does not reflect the possesses who a false means of identification. victim, on impact 1028A(a)(2) in addition to the See 18 U.S.C. (mandating five- institution.”). loss to the financial year The Con- prison "knowingly consecutive term for gress’s damage central concern transfer[ing], with the possessing] us[ing], without wrongful per- caused authority, use of another lawful a means of identification of identity rings throughout son’s or a false identification docu- See, 108-528, history. e.g., Rep. H.R. “during No. ment” felony in relation to (''[T]he 2004 U.S.C.C.A.N. at 780 loss to violation enumerated (i.e., businesses and 2332b(g)(5)(B)” offense)); financial institutions from a terrorism identity theft [is estimated] $47.6 to be Rep. billion. H.R. No (“The costs to individual consumers are esti- U.S.C.C.A.N. at 779 bill also amends billion.”); approximately $5.0 mated to be id. impose higher current law to maximum (statement Coble) (“In 2002, Rep. penalty identity theft used to facilitate acts 161,819 terrorism.”); FTC received complaints victim id. at 2004 U.S.C.C.A.N.at Qaida compromised personal ("[A]l information.... organiza- and other terrorist [These] victims a difficult time increasingly consum- tions turn to stolen identities to expensive repairing [sic] an enforcement.”). task of hide themselves from law damaged history credit as well as their Significantly, five-year re- consecutive sen- spective reputations.”); (statement id. at 35 imposed tence is to be whether or not the Scott) ("[T]he Rep. reports FTC [consumer false identification per- is that “of another son,” theft] bilked almost 30 manifesting million Ameri- that scienter “of another approximately cans out $50 person” required. billion over the is not *20 1028A(a)(l) in- will “identity pretation theft” saddle examples that a Report exhaustively government burden cannot in the House cluded Maj. “wrongful” Op. Except behavior meet.” at 1249. for the types describe sanction, himself, forger proving beyond ma- a reason intended to Congress thousands, pri- able that each of the sight Congress’s doubt jority has lost millions, green the nation-wide of holders of false mary objective stopping — by upping the cards knows that the false means of identi identity theft tidal wave possesses fication he is that “of another preposterous for the thief. It is ante person” plainly “plaee[ prosecution think that so would on the ] the same burden.” firmly penal- impossible intended to increase the often [an] Chin, en- States v. mandatory penalty consecutive ty —“a denied, cert. (D.C.Cir.1992), years” the defendant hancement of —if (1993). means of identification another’s possesses pred- legislative history persuades a federal that “in order to commit serious me id. offense,” icate 2004 U.S.C.C.A.N. considered the unauthorized imposition limit its use of another means of identifi would then so require prove “wrongful” the Government cation to be and therefore cov as to the defendant knows wrongfully he ered whether done per- “dumpster diving,” “hacking “of another into a possesses majority ig- computer system” “imagining string respect, son.” In this reality “doubt[ing] inter- of numbers.”11 [its] nores government prove major high-tech companies. also the defen- even Some Must the 10. person[’s]” identity? opened using "another I dant knows bank accounts the number. majority assume even the would not offer reading. law, Security Under current if the Social the Internal Revenue Administration or just example that can I note one result using multiple people the same Service find majority’s seemingly benign fit within the number, Security agencies send Social label, Maj. Op. misappropriation” "accidental possible informing employers of er- letters at 1246: rors. Security One woman’s Social identifica- employers $50 each The IRS can fine by at least 81 tion number has been used filed, punishment inaccurate number glean- people [IJnformation in 17 states.... companies just another often dismiss as investigations, ed criminal tax docu- from doing cost of business. suggest and other sources most of ments "Sending letters is the limit to what can illegal immigrants probably the users were done,” Security spokesman Lo- be Social trying get work. Schmierer, Kepke expect 33-year-old well said. "We that will be Audra house- suburb, wife in this affluent San Francisco able to fix records that are incorrect.” problem February realized she had a 2005, The information on mismatched names is got when a statement from the she agen- with law enforcement seldom shared $15,813 saying tax- IRS she owed in back cies. though es—even she had not worked since Perhaps her son was born in 2000. even investigating done a little Schmierer has surprising, the taxes were due from more own, combing through tax bills sent of her jobs in Texas. employers to her for names and locations of that her So- Schmierer has since found people using who hired her number. Security by peo- cial number has been used state, than 200 W- She has also obtained more Washington ple from Florida sites, her 2 and 1099 tax forms that contained construction fast-food restaurants *21 authority, of the means of con without lawful history and But resort to necessary belong to another intent is not even identification ‘known gressional Hurtado, language is discernible meaning of v. person.’ actual United States language Cir.2007). under (11th a construction from This is 508 F.3d language pari together with review in 18 Congress what did precisely held that if the have often materia. We 1546(a) offense predicate —the language legisla had intended Congress guilty to in pleaded Villanueva-Sotelo meaning, “it disputed a certain tion to have penalty triggering Count the enhanced clearly.” more Blue would have said so 1546(a) 1028A(a)(l). Section E.P.A., 370 F.3d water Network illegal it to: makes (D.C.Cir.2004); Al see also Gustafson use, ], ], pos- attempt[ utter[ use[ ] Co., loyd sess[], obtain[], or accept[], receive[] (1995); Consumer Fed’n 131 L.Ed.2d counterfeited, altered or any [forged, Dep’t. Health & Human Am. v. U.S. falsely prescribed ... document made] (D.C.Cir. Servs., 1503 n. 6 regulation or as evidence 1996) (“[H]ad ..., intended [so] in the stay employment of authorized or would have drafted the stat presumably States, knowing forged, it to be differently....”). Here the ute altered, made, counterfeited, falsely to prohibit “could have drafted the statute use, transfer, procured by or to means of possession, or have been knowing using Security Security woman her Social number number but different Social felony. wanted a was names. compro- Schmierer's number became so police report a after Schmierer filed Security finally that Social officials mised learning man had used her information one step took a rare used extreme cases: janitorial landscaping com- in 2003 at They gave her a new one. Prengaman, Security panies City, Peter One Social Num- near Haltom Texas. ber, NEWS, People, CBS June man, Investigators who told found http://www.cbsnews.com/ available at sto- bought officers he a fake Social Securi- had ries/2006/06/ 17/national/main market, ty according to a card at a flea shtml?source=RS S & attr=HOME 1726397. report. police He was not arrested. people Whether the who had these cards security had obtained Schmeier's social num- through "dumpster diving,” "hacking ber into a a What started as hassle turned into computer system” simply "imagining a major year headache earlier this when she numbers,” string of the harm Schmierer suf- sought through temporary agency work Congress really fers is the same. Can the Security learned her Social number prevent repetition have intended to by a woman in Texas two had been used nightmares by punishing like Schmierer’s years agency earlier. The could not hire (from severely only among more that thief while the Schmierer for more than month 81) purloined who knows that the social secu- situation was clarified. rity a real number is one? you prove you you?” "How do are majority points out the obvious fact you guilty Schmierer said. “It’s like are postdates by report this news some two proven until innocent.” years Maj. Op. the enactment of the ITPEA. returning trip While from a to Mexico it, course, highlight not as at 1249. I year, was with her husband last Schmierer legislative history example but as an of what airport detained for four hours in a Dallas majority’s oxymoronic misap- "accidental by immigration propriation” interpretation will work. officials. The reason: admits) (of statement, pro- or to have he and Count 3 which he false claim or *22 by fraud or procured innocence) otherwise been fesses his based on the same unlawfully obtained. charges mens rea does not mean the are added). 1546(a) By (emphasis § duplicative. 18 can commit Villanueva-Sotelo Congress plainly intend- language this in predicate offense set out section that know ed Villanueva-Sotelo 1546(a) whether or not the false means of to the MPD officer was presented Card he another; belongs to if it identification does counterfeited, falsely or forged, altered is, another, if it belong to fits the fact that the chose made. The 1028A(a)(l), set out in section description in language to use the same section has also committed the Villanueva-Sotelo 1028A(a)(l) enhance- provision whose —a thereby added a “aggravated” offense incorporates 18 U.S.C. expressly ment mandatory two-years’ impris- consecutive (with 1546(a) differing language) § its punishment. onment to his given a construc- which therefore must be persuades me that pari tion in Moreover, comparison a of sections materia12 — require it did not intend to Villanueva- 1028A(a)(l) 1028A(a)(2) also demon- presented to that the he Sotelo know Card that the not intend strates did in to person” was that “of another order “knowingly” modify “of person.” to another 1028A(a)(l). If it violate section had so (a)(2) five-year provides Subsection for intended, phrased it would have section anyone enhancement for who “dur- penalty it did explicitly as section ing (per and in relation to” a terrorist act 1546(a); example, for “a means of identifi- § 2332b(g)(5)(B)): 18 U.S.C. belong per- cation known to 13 transfers, uses, knowingly possesses, or is, son.” The fact Villanueva-Sotelo in my view, guilty of both Count 2 (which without lawful authority, ^[1] a means of 32(c) § "Statutory provisions pari 5C1.2 and Fed.R.Crim.P. 12. materia nor- U.S.S.G. Ford, 426, materia); mally together to discern their are construed 66 pari Mimkon v. N.J. Am., meaning.” 199, Inc. (1975) ("[T]he Motion Picture Ass'n 332 A.2d 203 rule most 796, FCC, (D.C.Cir.2002) (cit- v. 309 F.3d 801 obviously applies .... where statutes in [the 239, Erlenbaugh ing 244, v. United question] specific reference to one an make (1972)). ....”) (citing 2A other Statutory Sutherland materia, pari statutes need not To be in (Sands 1973)); § ed. Keith 51.03 Construction simultaneously or refer to have been enacted Lockhart, v. 171 N.C. 88 S.E. However, rule that one another.... stat- (1916) pari (construing two statutes in mate- pari be construed to- utes in materia should express when "the later statute ... ria gether greatest probative force ... or has former). Sec terms refers to ... Because or more in the case where the later two 1028A(c)(7) expressly incorporates ref relating subject statutes to the same matter 1546(a) and because both sec erence the earlier. In these situations the refers tions, 1028A(a)(l), as well as relate to relating probability that acts to the same sub- subject (possession of a false the same matter ject policy matter were based on the same is identification), they are to be con means of very high. pari materia. strued § 2B 51:3 Statutory Construction Sutherland (6th 2000) added) (footnotes (emphases ed. ("It See, e.g., 922(q)(2)(A) 18 U.S.C. shall see, omitted); e.g., Headrick v. Estate of knowingly individual be unlawful Comm’n, (6th Cir.1990) 918 F.2d " in or that possess a firearm that has moved (tax 'specifically cross refer- statutes " foreign or com- otherwise affects interstate pari encing]' each construed in mate- other knows, place merce at a that the individual Comm’n, ria) (quoting Estate Leder believe, is a school has reasonable cause to (10th Cir.1989)); F.2d United States zone.’’) added). (emphases (5th Cir.1995) Rodriguez, 60 F.3d supported ("explicit reference” constru- cross identification of another ^[2] Rifle Ass’n Am., Inc. v. Reno, (D.C.Cir.2000). document.... Common sense false identification Congress, seeking stop tells me that the added). 1028A(a)(2) 18 U.S.C. of crime that type increasing on an dem- prong second of this subsection basis, daily penalty almost enhanced the Congress’s intent that a ter- onstrates the purpose. anything effect its And it is but possesses that he knowledge rorist’s sense to common conclude the same all supplies “false” identification document *23 gut intended to that enhanced necessary aggra- to commit culpability majority’s Thus, penalty, reading does. identity when vated theft. subsec- (a)(1) in phrase uses the identical Finally, I majority believe the misinter “knowingly pos- one who speaking of prets Supreme precedent. Court That ..., authority, a sesses without lawful precedent presumption teaches “[t]he of another person,” means of identification requires favor of scienter a court to is satisfied if the requirement scienter read into a statute that mens rea possesses defendant knows that he “a necessary separate wrongful which is means of identification” “without lawful au- conduct from ‘otherwise innocent con thority.” phrase person” “of another States, duct.’ v. Carter United 530 U.S. is, effect, jurisdictional language de- 255, 256-57, 2159, 120 S.Ct. 147 L.Ed.2d scribing the “means of identification” that (2000) (quoting 203 X- United States v. triggers an penalty.14 additional Video, Inc., 64, 72, Citement 513 U.S. 115 majority Both I ink spill lot of (1994)) 464, (first S.Ct. dueling statutory on canons of construc- added). emphasis example, Liparo For 1256-58; Maj. tion. supra pp. Op See States, 419, ta v. 471 United U.S. 105 S.Ct. 1237-40, Perhaps exchange 1247-49. our 2084, (1985), L.Ed.2d Supreme 85 434 that, than illustrates little more in constru- interpreted require Court the mens rea statutes, a variety courts have of inter- prohibited ment of statute which “know pretive aids to choose from. The first ingly us[ing], transferfing], acquiring], al principle construction, statutory howev- tering], possessing] coupons,” 7 [food] er, apply is to common sense in the read- 2024(b)(1), “in manner not ing of language. See United States v. authorized regulations.” statute or Li Howell, 432, 432, 436, 11 78 20 Wall. 426, 105 parota, 471 U.S. at At S.Ct. 2084. (1870) (“[Ojne L.Ed. 195 of the first canons issue was whether “knowledge” re us if possi- construction teaches to avoid quirement applied to each element of the ble which is at war [a result] i.e., whether ”); Ward, the defendant was common sense.... Roschen v. offense — required to know that he was 336, using 279 U.S. food 49 S.Ct. 73 L.Ed. (1929) (“[Tjhere “in a stamps manner not authorized against is no canon using regulations.” common sense in statute or construing Liparota, laws as mean.”); saying they obviously what Nat’l U.S. at 105 S.Ct. 2084. The Court 1028A(a)(2) Construing ty. 14. knowing possession That of "a false together majority’s also that the reveals em- identification document” suffices to violate phasis on the word “theft” in the title ITPEA’s 1028A(a)(2) makes clear that the Con- misplaced. prong Under the second gress intended “theft” to be con- 1028A(a)(2) a defendant can be con- broadly strued some instances not even —in aggravated identity despite victed of theft requiring majority the "traditional” theft the fact misappropriated that he has not —acci- describes. dently or otherwise—another identi- stamp give stat The Court chose not to the “most language of the food found the natural,” id., statute, legisla reading that the of the in- ambiguous and noted ute clarify scope extending stead history requirement tive did not mens rea id. at requirement. mens rea to each element of the offense. It ex- ultimately held The Court plained presumption 105 S.Ct. 2084. that “the in favor of a “knowledge” requirement applied requirement that the scienter apply should to each offense, emphasiz element of the to each statutory elements that criminalize “eriminaliz[ing] a ing its desire to avoid otherwise innocent conduct.” Id. at innocent con range apparently broad (discussing 115 S.Ct. 464 Morissette 426, 105 duct.” Id. S.Ct. States, 342 U.S. (1952) L.Ed. Staples v. United Video, In United States X-Citement 511 U.S. Inc., 464, 130 (1994)). L.Ed.2d 608 Otherwise: (1994), Court Supreme L.Ed.2d 372 druggist a retail who returns an unin- expressed interpret- the same concern *24 “knowing- spected roll of film a developed a statute which criminalized to cus- ing shipping, receiving, “knowingly dis- tomer distributes” visual ly” transporting, sexually explicit depiction criminally and would be liable tributing reproducing or if it that involving material minors.16 The Court were later discovered the visual grammatical depiction images that under the “most contained of children believed statute,” 70, in engaged sexually explicit id. at 115 S.Ct. conduct. reading of the Or, 464, modify only apartment a new resident of an “knowingly” would (i.e., might prior receive mail for the resident immediately surrounding verbs construction, mail If the ships”). unopened. This and store the “transports or however, delivery if prior requested allow conviction even the tenant had would ... [explicit] that the materi- materials his residential defendant was not aware prosecuted that the successor could be for sexually explicit als were or actors 68, “knowing receipt” such materials. minors. Id. at 115 S.Ct. 464. were error, by tearing explained: tive "altered” them them 15. The Court use, by throwing up, them and "transferred” it criminal to [The statute] declares course, transfer, alter, possess away. could acquire, or food them Of stamps any in not authorized range manner of con- have intended that this broad regulations. provides statute or The statute illegal, perhaps duct be made with the un- "[c]oupons eligible further that issued to derstanding prosecutors would exer- only households shall be used them cise their discretion to avoid such harsh purchase which food in retail food stores However, paucity given the of ma- results. participation approved for in the been suggesting in- terial did so stamp program prices prevailing in food tend, adopt such a we are reluctant 2016(b) 7 U.S.C. ... This such stores.” interpretation. sweeping only use. A seems to be the authorized Liparota, 471 U.S. at reading knowl- strict of the statute with no (cita- original) (emphases in and alterations edge-of-illegality requirement would thus omitted). tions and footnote stamp recipient render criminal a food who, example, stamps purchase for used charges to be 16. The statute allowed criminal him, that, unknown to food from store "knowingly brought against any person who charged higher prices to food than normal foreign transports ships or in interstate or stamp program participants. Such read- any depiction, ... visual if commerce criminal a nonreci- would also render depiction producing involves of such visual "possessed” pient stamps of food who sexually engaging ex- of a minor in use stamps mistakenly because was sent he 2252(a). plicit U.S.C. conduct.” 18 through due administra- them the mail 1028A(a)(l) 1028A(c).18 Section functions Express a Federal courier Similarly, any pro “other federal which law[] shipper a box which the delivers who or penalties enhanced con vided] allow[s] contents to be “film” declared has obviously antisocial conduct viction for such film. “knowingly transports” We of a fact which defendant upon proof Congress, passing assume do not aware.’ States v. need not be United results. laws, such intended (4th Montejo, 442 F.3d 216-17 Cir. 69-70, 115 464. The S.Ct. Court Id. at 2006) Cook, States v. merely result as “not this characterized (4th see, Cir.1996)); e.g., F.3d odd, absurd.” Id. at positively but Feola, United States v. 420 U.S. 464.17 (1975) (up danger no similar innocent There is holding penalty enhancement under 18 unwitting might penalized conduct be § 111 who assaults under section because a con- federal officer whether or not he knows viction can be had the defendant is, fact, officer);19 victim federal see LaPorta, has used another means identi- also United States v. 46 F.3d Cir.1994) (2d (defendant in relation to one during fication re quired building gov- know torched felony offenses enumerated was Holland, today, 17.Until our decisions have been to the States v. 1223-24 denied, (D.C.Cir.), example, same effect. For in United States v. cert. *25 Chin, (D.C.Cir.1992), 2199, (1987); 981 F.2d 1275 cert. de S.Ct. 95 L.Ed.2d 854 we held nied, U.S. 923, 2377, (recodified 124 § 508 113 S.Ct. that 21 U.S.C. under 845a as 21 (1993), 860) § L.Ed.2d 281 we held that under 21 prohibited U.S.C. the sale of —which 861(a)(2) prohibits anyone § controlled substances within 1000 feet of a —which illegally who distributes a controlled sub elementary secondary school—the Govern "knowingly intentionally stance from ... prove ment need not that the defendant knew employing] person eighteen ... under that a school was within 1000 feet because years age to assist”—the Government need reading necessary such was not to avoid prove accomplice not the defendant knew his "criminaliz[ing] range apparently a broad ” eighteen. was under We noted that "this is Id. innocent conduct.’ at 1223. interpreta not an instance in which a broad 'ap tion of a statute threatens to criminalize earlier, 18. As noted Villanueva-Sotelo admit- ” parently innocent conduct.’ Id. at 1280 knowing possessed ted the Card he was false 426, (quoting Liparota, 471 U.S. at 105 S.Ct. possession and that his of the Card ille- was 2084). explained We “[a] that conviction un 3, gal, Liparota see Factual Proffer unlike the 861(a)(2) § der 21 U.S.C. can be had professed ignorance defendant who his upon proof person knowingly that the unlawful conduct. intentionally” used another to distrib ute controlled substances. Id. Because 19. The Feola Court reasoned that: hardly distribution of an innocent narcotics is interpretation poses § [its] [of 111] no risk act, we held that the Government was not of unfairness defendants. It is no snare required prove that the defendant knew his unsuspecting. Although perpe- for accomplice eighteen. was under United Cf. Williams, 737, may surprised ... trator be to find that his (11th v. States 922 F.2d 738-39 Cir.) intended victim is a federal officer in civil- (interpreting same subsection and con apparel, ian he nonetheless knows from the cluding prove Government need not defen denied, very planned that outset his course of con- age), dant knew cert. minor’s 502 U.S. 892, 258, (1991); wrongful. duct is The situation is not one L.Ed.2d 212 116 Valencia-Roldan, legitimate United v. where conduct becomes unlawful States 893 F.2d 1080, (9th (same), denied, Cir.) solely 1083 cert. because of individ- 495 935, 2181, U.S. 110 ual takes vic- [victim].... [T]he S.Ct 109 L.Ed.2d 509 offender his Carter, (1990); 1102, United States v. tim he finds him. as (8th Cir.1988) (same). Feola, 685, 1108-09 In United 420 U.S. at S.Ct. 95

1261 here, help tion I cannot but conclude that is “[a]rson because property eminent (quota innocent conduct” intended the violation sec- hardly otherwise Falu, omitted)); v. 776 hinge States tion on the defen- United Cir.1985) (2d (Drug Free knowing use of a means of identifi- F.2d dant’s ... construction Zone Act: “This without his School cation known to be false also ac otherwise innocent not criminalize having does to know the false identification is Hamilton, 456 v. tivity”); United States person.” that “of another (3d Cir.) (in Mann Act F.2d 172-73 sum, hold, every In I other would has required defendant prosecution, language, circuit that has construed this across state line transported minor know Montejo, 442 F.3d 213 see United States eighteen; immoral under purpose was , —U.S. (4th —, Cir.), cert. denied only to act of to refer “knowingly” held (2006); 366, 166 L.Ed.2d 138 S.Ct. denied, transportation), cert. (8th Hines, Cir.), 472 F.3d 1038 States v. (1972). In L.Ed.2d 335 S.Ct. — denied, —, cert. U.S. can cases—where the defendant these (2007); United States v. that “hardly surprised [his to learn be (11th Hurtado, Cir.2007), 508 F.3d 603 act,” an innocent see Unit is not behavior] 1028A(a)(1) that of the ITPEA Freed, 401 ed States v. U.S. require prove does not the Government (1971) 1112, 28 L.Ed.2d 356 S.Ct. —the the defendant know the false duty have made the defendant’s courts “ possesses “means of identification” he whether peril [his at his to ‘ascertain^] person.” “of another 18 U.S.C. inhibition of the within the actions] come[ ] 1028A(a)(l).20 I Accordingly, would re Id. United States statute.’ verse the district court’s dismissal of Balint, 250, 253-54, with a charging Villanueva-Sotelo Count (1922)). It is well settled 66 L.Ed. 1028A(a)(l). violation of 18 U.S.C. “presum[e] that we must judicial Court’s] was aware of [the *26 Corp. v. United

interpretations,” Keene 2035,

States, 200, 212, 113 S.Ct. 508 U.S. (1993), including “[t]he L.Ed.2d 118 gen

presumption [that] in favor of scienter into a stat

erally requires a court to read necessary rea which is only

ute mens from ‘other separate wrongful conduct ” Carter, 530 U.S.

wise innocent conduct.’ 257, 120 X-Citement S.Ct. 464) (first

Video, 72, 115 S.Ct. added). presump-

emphasis Applying ”) (quoting ambiguous Huddleston lenity inapplicable statute.' I believe the rule of is here, holding. States, an alternative even if United 415 U.S. Chapman v. Maj. Op. at 1246-47. See (1974); United States v. 500 U.S. Bass, (1991) (rule lenily L.Ed.2d 524 (1971)). the rele- To the extent L.Ed.2d 488 'grievous applicable "is not unless there is language ambiguous, it is far from vant language ambiguity uncertainty in the so; history “grievously” and statu- Act,’ after ... such that even structure of up tory language pari clear it nice- mateña everything from which seize[d] a court has ly. derived,’ ‘left with an aid can be it is still