U.S. v. Godin, Criminal No. 06-93-P-H.

• Decision Date: 28 February 2007
• Docket Number: Criminal No. 06-93-P-H.
• Citation: 476 F.Supp.2d 1
• Parties: UNITED STATES of America v. Cori A. GODIN, Defendant.
• Court: U.S. District Court — District of Maine

Page 1

476 F.Supp.2d 1

UNITED STATES of America v. Cori A. GODIN, Defendant.

Criminal No. 06-93-P-H.

United States District Court, D. Maine.

February 28, 2007.

Craig M. Wolff, Assistant United States Attorney, District Of Maine, Portland, ME, for United States of America.

Eric A. Vos, Federal Public Defender, Portland, ME, for Defendant.

ORDER ON DEFENDANT'S MOTION TO DISMISS COUNT 17 OF THE INDICTMENT

HORNBY, District Judge.

In 2004, Congress enacted the Identity Theft Penalty Enhancement Act. Pub.L. 108-275, § 2(a), 118 Stat. 831. The Act created an enhanced criminal penalty for anyone who, while engaging in an enumerated felony (the indictment in this case alleges bank fraud and social security fraud), "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." 18 U.S.C. § 1028A(a)(1). This motion to dismiss poses the following question: To qualify for the enhanced penalty, must the defendant actually know that the unauthorized identification in question was that "of another person"? The government says no; the defendant says yes. The caselaw to date is divided. Compare U.S. v. Montejo, 442 F.3d 213 (4th Cir.2006), and United States v. Contreras-Macedas, 437 F.Supp.2d 69 (D.D.C.2006) ("knowingly" does not modify "of another person"), with United States v. Beachem, 399 F.Supp.2d 1156 (W.D.Wash.2005) ("knowingly" does modify "of another person"). I conclude that deciding the issue on a motion to dismiss would be premature; I do not yet know what the evidence will show. I can properly determine it only upon a motion for acquittal at the close of the government's case or perhaps in the context of crafting a jury instruction.

The Montejo district court concluded that "the mens rea requirement of the statute applies only to the conduct involved — transfer, possession, or use — and not to the object of that conduct — the means of identification of another person," 353 F.Supp.2d at 655, but that broad statement cannot be correct.¹ (Montejo itself found its outcome "absurd." Id. at 654.) If during a bank fraud conspiracy, I hand a defendant a sealed envelope asking her to transfer it and its contents to another and she knowingly does so, she has knowingly transferred the envelope and its contents. But if she believes my statement that the envelope contains only a birthday card when in fact it contains a forged social security card, the government surely would not contend that she should receive the enhanced penalty. The word "knowingly" must modify not just the verb, but also at least the object that immediately follows the verb, namely, "a means of identification." The Fourth Circuit recognized as much when it affirmed Montejo. 442 F.3d at 216 (following a precedent interpreting a similar statute where the court held "the modifier `knowingly' extended to the object ... but not the prepositional phrase modifying it...."). We apply the same interpretation to Controlled Substances Act offenses. To be convicted, a defendant must know more than that he is transferring or possessing "something" — he must know that the "something" is a controlled substance such as marijuana or cocaine. 21 U.S.C. § 841.

So "knowingly" must modify both the verb (e.g., "uses") and the immediate object ("a means of identification"). The real question is: does it modify also the secondary prepositional phrase that follows that immediate object, namely, "of another person"? Contrary to Montejo, Beachem concluded "yes," reasoning from the Supreme Court opinion in X-Citement. In X-Citement, the Court dealt with a criminal statute that prohibited "knowingly" transporting, shipping, receiving or distributing visual depictions "if ... the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct." 513 U.S. at 68, 115 S.Ct. 464. The Court held that the adverb "knowingly" required a defendant to know not merely that he was transporting, shipping, receiving or distributing visual depictions, but that he knew also that they involved the use of a minor engaging in sexually explicit conduct. The grammatical structure of that statute required a much greater semantic leap (applying the adverb "knowingly" to a separate clause — "if the producing ... involves the use of a minor engaging in sexually explicit conduct") to reach that conclusion than does the grammar of the identity theft law where the semantic extension (requiring knowledge that the information belongs to another person) is merely to a prepositional phrase succeeding the direct object. On the other hand, the government argues persuasively that X-Citement was dealing with what was otherwise innocent conduct (receiving or distributing visual depictions); it was only the content of the depictions that made them criminally unacceptable and it was unlikely that Congress intended to penalize innocent conduct. Here in contrast, the criminal conduct is already defined (someone engaging in bank fraud, social security fraud, or another enumerated felony) and the issue is only whether to impose the enhanced penalty. There is less reason to be concerned therefore with what the defendant knew or did not know about other characteristics of the false means of identification.²

Here apparently (I am unsure because I have only the briefs, no factual stipulation), the defendant re-sequenced the last four digits of...