This post examines a recent opinion from the U.S. Court of Appeals for the 9th Circuit: U.S.
v. Doe, 842 F.3d 1117 (2016). The court begins by explaining that
John Doe appeals from his
convictions of aggravated identity theft under 18 U.S. Code § 1028A, for
knowingly possessing and using the name, birth date, and social security number
of another person when he applied to renew a Nevada driver's license and when
he submitted a Form I-9 Employment Eligibility Verification form to his
employer.
Doe contends that the Government failed
to prove an element of the offense—specifically that he knew that the false
identity he used belonged to a real person. He also challenges the
reasonableness of his 78-month sentence.
This case presents the question, not
previously addressed by this Court, of whether evidence of a defendant's
repeated submission of false identifying information as part of successful
applications to a government agency is sufficient to permit a reasonable jury
to find that the defendant knew that the information belonged to a real person.
U.S. v. Doe, supra.
This post only examines Doe’s challenge to the government’s having proved an
essential element of the offense; it does not examine his argument regarding
his sentence.
The Court of Appeals appended this footnote to the first
mention of “John Doe” in its opinion: “To the date of this writing the
Defendant, who has refused to provide his name, has not been affirmatively identified
and is referred to as `John Doe.’” U.S.
v. Doe, supra.
The court goes on to explain how, and why, the prosecution
arose:
The victim of Doe's identity theft,
referred to herein as `V,’ was born in San Jose, California in 1963 and, in or
about 1977, was assigned a social security number and card. No later than 1987,
V's uncle sold V's birth certificate and provided his social security number to
a man, not identified at trial. In 1987, someone, most likely Doe, used V's
birth certificate, name, and social security number to obtain a `replacement’
social security card from the Social Security Administration. For some 27
years, until Doe's arrest in 2014, V's identification was used without his
authorization, most likely by Doe. In this regard, V received notices from the
Social Security Administration (approximately every three years) that his name
and social security number were being used in connection with multiple jobs in
different places, including Nevada, with which V had no connection.
The evidence establishes that Doe's use
of V's identity began no later than 2002 when Doe obtained a driver's license
upon an application to the Nevada Department of Motor Vehicles (`DMV’) that
contained Doe's photograph but V's name and birth date. Doe renewed this
license multiple times by resubmitting V's identifying information and had such
a license in his possession when arrested in 2014.
On or around May 15, 2013, Doe
submitted such a driver's license together with a social security card with V's
number to Doe's employer with a Form I-9 Employment Eligibility Verification.
The unauthorized use of V's identity
caused him problems for approximately three decades. In the 1990s, his driver's
license was suspended twice—including once while he was employed as a truck
driver—because of DUIs committed in a different state by another person using
his social security number. Tax refund checks due to him from the IRS were sent
to a person in Nevada using his social security number. His wages were
garnished three times to pay child support for children that were not his. More
likely than not, these problems were caused by Doe's misuse of V's identity. In
any event, it is clear that in 2013 V's unemployment benefits were halted
because of child support payments owed (and not made) by Doe. V contacted Doe's
employer to notify it that an employee was unlawfully using his identity.
On or around June 4, 2014, Doe was
arrested in connection with a fraud investigation conducted by the Nevada DMV
and the Department of Homeland Security. At that time, he was found to be
in possession of a Nevada driver's license bearing his photo and V's
identification information.
U.S. v. Doe, supra.
The Court of Appeals then takes up the legal issue involved
in this appeal:
Doe was charged with two counts of
aggravated identity theft under 18 U.S. Code § 1028A, unlawful production
of an identification document under 18 U.S. Code § 1028(a)(1), and false
attestation in an immigration matter in violation of 18 U.S. Code §1546(b)(3). At trial, he was convicted on all charges. The district court
sentenced Doe to 78 months of incarceration.
Doe appeals, challenging (1) the
sufficiency of the evidence upon which his aggravated identity theft
convictions were based, and (2) the reasonableness of his sentence.
U.S. v. Doe, supra.
This post only examines Doe’s challenge to the sufficiency of the evidence; it
does not examine the sentence.
The Court of Appeals analyzed the arguments Doe made on
appeal in the order in which they are set out above. U.S. v. Doe, supra. It began by outlining the standard of review it
employ in reviewing a conviction:
This Court reviews the sufficiency of
evidence supporting a defendant's conviction de novo. We must construe the evidence `in the light most favorable
to the prosecution’ and must affirm the conviction if `any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’ United States v. Nevils, 598 F.3d 1158, 1161
(9th Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443U.S. 307, 319 (1979)).
U.S. v. Doe, supra
(emphasis in the original).
The went on to find that the “evidence was sufficient”. U.S. v. Doe, supra. And it explained
that
Title 18 U.S. Code § 1028(A) provides
that a person who `knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person’ in connection with an
enumerated felony shall be sentenced to two years imprisonment. 18 U.S.
Code § 1028A (2012).
To prove a violation of § 1028A,
the Government must prove beyond a reasonable doubt that:
1. The defendant knowingly transferred
or used a means of identification of another person without legal authority;
2. The defendant knew the means of
identification belonged to a real person; and
3. The defendant did so in relation to
one of the crimes enumerated in 18 U.S. Code § 1028A(c).
See Flores–Figueroa v. United
States, 556 U.S. 646, 647, 655–56 (2009); United States v. Miranda–Lopez,
532 F.3d 1034, 1037, 1040 (9th Cir. 2008).
U.S. v. Doe, supra.
The court then began its analysis of the issue in the case,
noting that
Doe does not debate the Government's
proof of the first and third elements. Doe was proven to have used V's means of
identification without legal authority. And the use was proven to be in
relation to crimes enumerated in 18 U.S.Code § 1028A(c), i.e., the
violations of 18 U.S. Code §§ 1028(a)(1) and 1546(b)(3) for
which he was convicted in the instant case.
Doe acknowledges that the Government
proved that V was a real person. Doe
contends however, that, without direct proof of his knowledge
(such as proof that he knew V or had any connection to the sale of V's birth
certificate and identifying information), the evidence was insufficient to
establish his knowledge that V was a real person. The Court does not agree.
While direct evidence of the knowledge
element is often presented in § 1028A prosecutions, this Court has
recognized that the element can be proven by circumstantial evidence. See Miranda–Lopez,
532 F.3d at 1040 (citing United States v. Villanueva–Sotelo,
515 F.3d 1234, 1249 (U.S. Court of Appeals for the D.C. Circuit 2008) (`[P]roving
the defendant knew the stolen identification belonged to another person should
present no major obstacle, as such knowledge will often be demonstrated by the
circumstances of the case.’)). Thus, the issue here presented is whether the
circumstantial evidence was sufficient to establish Doe's knowledge that the
identity of V was that of a real person.
U.S. v. Doe, supra.
The court then noted that
[w]hen `determining the
sufficiency of circumstantial evidence, the question is not whether the
evidence excludes every hypothesis except that of guilt but rather whether the
trier of fact could reasonably arrive at its conclusion.’ United States
v. Nevils, supra (quoting United States v. Eaglin, 571 F.2d
1069, 1076 (1977)).
U.S. v. Doe, supra.
It went on to explain that
[t]he Government presented ample
circumstantial evidence to establish Doe's knowledge that V was a real person.
Most persuasive was proof of Doe's repeated success in obtaining renewed Nevada
driver's licenses bearing Doe's photograph and V's name, date of birth, and
social security number. In this regard, the Government introduced copies of
applications to the DMV for Nevada driver's licenses and state identity cards
in V's name. The “image history” associated with the applications dating back
to 2002 showed photographs of Doe taken when he applied for reissuances of
the driver's license and/or identity cards in V's name. Denise Riggleman, a DMV
Compliance Enforcement Investigator, described the process involved in
obtaining a new license or identity card through the Nevada DMV. Ms. Riggleman
testified that new applicants must present proof of identity documents, such as
a social security card or birth certificate, along with their applications to a
DMV technician in person. This information is input into the DMV computer
system, and the actual license is mailed to the applicant seven to ten days
later.
In addition, the Government proved that
Doe had submitted such a Nevada driver's license and a social security card in
V's name as proof of identity in connection with an I-9 Employment Verification
Form that he submitted to his employer.
U.S. v. Doe, supra.
The opinion goes on to explain that,
[i]n regard to the knowledge element of
the § 1028A charge, the district court instructed the jury:
`Repeated and successful testing of the
authenticity of a victim's identifying information by submitting it to a
government agency, bank or other lender is circumstantial evidence that you may
consider in deciding whether the defendant knew the identifying information
belonged to a real person as opposed to a fictitious one. It is up to you to
decide whether to consider any such evidence and how much weight to give it.
The jury found Doe guilty on both §
1028A charges.
U.S. v. Doe, supra.
The Court of Appeals therefore held that the
evidence of Doe's repeated successful
use of V's identity in applications subject to scrutiny was sufficient to
permit the jury to find that he knew that V was a real person. The Court's
holding is consistent with decisions issued by its sister Circuits. E.g., United
States v. Valerio, 676 F.3d 237, 244–45 (U.S. Court of Appeals for the 1st
Circuit 2012) (`”[W]illingness to subject [a] social security number repeatedly
to government scrutiny” is evidence that allows a reasonable jury to find that
a defendant knew that a stolen identity belonged to a real person’); United
States v. Doe, 661 F.3d 550, 562–63 (U.S. Court of Appeals for the 11th
Circuit 2011) (`[A] defendant's repeated and successful testing of the
authenticity of a victim's identifying information prior to the crime at issue
is powerful circumstantial evidence that the defendant knew the identifying
information belonged to a real person as opposed to a fictitious one’); United
States v. Gomez–Castro, 605 F.3d 1245, 1249 (U.S. Court of Appeals for the
11th Circuit 2010) (concluding that `repeatedly and successfully
test[ing] the authenticity of the birth certificate and social security card’
to obtain a license, benefit card, and passport was sufficient to show that the
identity belonged to a real person); United States v. Holmes, 595
F.3d 1255, 1258 (U.S. Court of Appeals for the 11th Circuit 2010) (`A
reasonable jury also could have found that Holmes's willingness to subject the
social security card repeatedly to government scrutiny established that she
knew, all along, that the social security card belonged to a real person and
was not a forgery’); United States v. Foster, 740 F.3d 1202, 1207 (U.S.
Court of Appeals for the 8th Circuit 2014) (`[R]epeated
subjection of [a victim's] identity to a lender's scrutiny provides strong
circumstantial evidence that the [defendant] knew the identity was real’).
U.S. v. Doe, supra.
The Court of Appeals also noted that
Doe, asserting that he is a Mexican
national, contends that it was unreasonable for the jury to find that he knew
how U.S. government agencies and their verification procedures worked. His not
being a citizen, although a resident, of the United States is a fact that the
jury could have considered relevant but does not render the jury's finding
unreasonable. As stated in Gomez–Castro, 605 F.3d at 1249 (affirming
the conviction of a citizen of the Dominican Republic), `[K]nowledge [of
verification processes] can be inferred reasonably based on ordinary human
experience for which no special proof is required; a trier of fact can rely on
common sense.’ See also Holmes, 595 F.3d at 1258 (concluding
that a reasonable jury could infer that a defendant (not a United States citizen)
knew that the government `requested and sometimes retained for many weeks’ the
submitted personal information to verify authenticity).
In sum, the Court holds that the
circumstantial evidence presented, establishing Doe's repeated successful use of
V's identification information, sufficed to permit the jury to find that he
knew that V was a real person. Hence, he was properly convicted on two counts
charging aggravated identity theft in violation of 18 U.S. Code § 1028A.
U.S. v. Doe, supra.
(And if you are wondering, the Court of Appeals affirmed Doe’s
conviction and his sentence. U.S. v. Doe,
supra.)
No comments:
Post a Comment